Ms J White v The Governing Body of Dorothy Stringer School and Brighton and Hove City Council: 2301903/2023 and 2303800/2023

EMPLOYMENT TRIBUNALS
Case No 2301903/2023, 2303800/2023
Between
Ms J WhiteClaimantThe Governing Body of Dorothy Stringer School and Brighton and Hove City CouncilRespondent
Before
Employment Judge LeithMr O’Keeffe (instructed by Counsel) for claimantMr Hitchens (instructed by Counsel) for respondentDate 14 February 2025

JUDGMENT

[1]The complaint of unfair dismissal is well founded and succeeds.[2]The complaint of discrimination arising from disability in respect of the Claimant’s dismissal (allegations 6(e) and 34 (a) and (b) of the list of issues) is well founded and succeeds.[3]The remaining complaints of discrimination arising from disability fail and are dismissed.[4]The complaints of failure to make reasonable adjustments fail and are dismissed.[5]The Respondents must pay to the Claimant the sum of £42,118.50, not including pension loss, made up as follows:a. A basic award for unfair dismissal of £13,181.50;b. A compensatory award for unfair dismissal of £350 (in respect of the loss of statutory rights);c. An award for injury to feelings of £15,000.d. Interest on the award of injury to feelings of £2,510.27 (calculated at 8% for 763 days, being the period from 25 November 2022 to the final day of the hearing)e. A compensatory award for discrimination of £7,984.53 (in respect of past loss of earnings);f. Interest on the compensatory award for discrimination of £668.50 (calculated at 8% for 382 days, being the period from half way between 25 November 2022 and the final day of the hearing to the final day of the hearing)g. A grossing up payment of £2,423.70 (calculated on the basis that Case No: 2301903/2023 & 2303800/2023 the first £30,000 of the award will incur no income tax, and the remainder will incur income tax at the rate of 20%).[6]Pension loss will be dealt with separately, in accordance with the Tribunal’s Case Management Orders of today’s date.

REASONS

[1]The Claimant brought two claims against the Respondents. They were consolidated by Employment Judge D Wright. The Claimant claims unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments.[2]The issues were discussed at the PH before EJ Wright. A list of issues was annexed to his CMO; that list is appended to these reasons. I discussed the issues with the parties at the start of this hearing. Mr Hitchens confirmed the legitimate aim being relied upon by Respondents, which was: “To ensure that staff are capable of demonstrating satisfactory attendance and a good standard of attendance comprising the aims of maintaining a fair, effective and transparent sickness management regime and the efficient use of resources in order to ensure that the education for pupils is not unduly disrupted”. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 2 of 69[3]Mr O’Keeffe confirmed allegations 6(a), 6(b) 9(a) and 13(a) were no longer being pursued by the Claimant. He further confirmed that: 3.1. In respect of allegations 13(b),(d) and (e), the failures were each alleged to have occurred on 5 May 2021 (Stage 1 outcome), 24 June 2021 (Stage 1 appeal outcome), 31 January 2022 (Stage 2 outcome), and 21 November 2022 (dismissal). In each case, it was said by the Claimant that the Respondent should have discounted all disability related absence at each stage and not have issued the relevant warnings/dismissal at all. 3.2. In respect of allegation 13(c), the adjustments relied upon were: 3.2.1. According the Claimant a reduced workload from January 2021; and 3.2.2. The adjustments recommended by Occupational Health and the Long Covid clinic in the reports on 18 May 2021, 13 October 2021, 27 January 2022, 23 March 2022, 24 August 2022 and 11 October 2022. 3.3. Allegations 13(f) and 13(g) were two sides of the same coin.[4]The list of issues annexed to EJ Wright’s CMOs were agreed by the parties, subject to those points of clarification.[5]I heard evidence and submission on liability first, and gave judgment on liability before moving on to deal with remedy. I have structured these reasons in the same way. To assist with navigation: Section Paragraph numbers Factual findings on liability 6 – 107 Law (liability) 108 – 155 Conclusion (liability) 145 – 237 Application to depart from Schedule of Loss 238 – 262 Factual findings on remedy 263 – 278 Law (remedy) 279 – 301 Conclusion (remedy) 302 - 344 Procedure, documents and evidence heard - liability[6]I heard evidence from the Claimant. On behalf of the Respondents I heard evidence from Richard Baker, Deputy Headteacher, and Matt Hillier, Headteacher. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 3 of 69[7]Each of the witness gave their evidence by way of pre-prepared witness statements, on which they were cross-examined. I additionally allowed supplementary questions, for the reasons I gave orally at the time.[8]I had before me a bundle of 1375 pages. References within these reasons in [square brackets] are to documents within that bundle. During the course of the hearing, two further documents were adduced by agreement. The first was a spreadsheet showing the timetables of all of the English department staff for the 2022/23 academic year. The Claimant disclosed photographs of a paper copy, and the Respondent disclosed the original excel document. There appeared to be no material difference between the two copies. The second was a timetable for Ms Holly Taylor, a teacher in the English department, dated 1 September 2022.[9]I also had before me an agreed chronology and a cast list.[10]At the end of the evidence I had the benefit of helpful submissions from Mr Hitchens and Mr O’Keeffe (which in Mr O’Keeffe’s case were supplemented by an Opening Note, and a bundle of authorities). Factual findings (liability)[11]I make the following findings on balance of probabilities. I have not dealt with every area canvassed before the Tribunal; rather, I have focused on those necessary to reach a conclusion on the issues in the claim.[12]The First Respondent is the Governing Body of Dorothy Stringer School, a mainstream secondary school in Brighton. The Second Respondent is the Local Authority. The Claimant was employed by the Second Respondent as an English Teacher at the First Respondent school. Her employment commenced in May 2007. From September 2017, the Claimant was additionally the Whole School Literacy Coordinator. That was an additional responsibility which led to the payment of an additional annual sum of approximately £3,000 per year, called a TLR award. She was employed 0.8 FTE (that is, four days per week). Full time teachers teach for 190 days per year (plus 5 inset days). The Claimant therefore was required to teach for 152 days per year.[13]The school operates a fortnightly timetable, with five one-hour lessons per day. In addition, pupils attend registration with their form tutor for ten minutes every morning, and tutor time for 20 minutes every lunchtime. There is a morning break of 20 minutes, and a lunch break of 45 minutes.[14]The Claimant’s job description provided that she was required to be a form tutor as well as teaching English [948]. Form tutors take morning registration with their form class, and are also required to prepare and deliver a session during tutor time every day. Not all teachers in the school have a form class. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 4 of 69 Some, typically those who work part -time, instead provide tutor cover, meaning that they cover the form class where their form tutor is absent from work. Teachers are also required to provide break cover one day per week.[15]The Claimant was diagnosed with Hashimoto’s Disease in around 2003. It is common ground that this was a disability within the meaning of the Equality Act 2010 at all relevant times, and that the Respondent had knowledge of it from at least February 2020.[16]The Claimant also suffers with Long Covid. She was formally diagnosed in May 2021; the Respondent accepts that it had knowledge of the Claimant’s Long Covid from May 2021 onwards.[17]At all relevant times, the First Respondent had in place a Sickness Absence Management Procedure (“the Policy”) [950]. The Policy set out what was described as “Attendance Concern Levels”. These were in essence triggers which, where met, required the Headteacher to consider whether to invite the employee to a formal Absence Review. The relevant levels were: 17.1. 3 or more separate spells of sick absence in any six month period; and 17.2. 10 or more days of sick absence in any six month period [954][18]Paragraph 17.2 of the policy provided as follows: “17.2 It is not necessary to convene formal Absence Review meetings under the Procedure where it is clear from the return to work discussions and previous attendance record that: ■ the employee’s future attendance levels are likely to be satisfactory ■ the employee has a disability and there is a short term attendance issue which will be resolved ■ the employee has a disability and there is a longer term issue where a reasonable adjustment could be to accept a slightly higher level of absence compared to a similar employee who does not have a disability ■ the employee has been absent due to a newly diagnosed condition/illness that is covered under the Equality Act. For other examples, see appendix 8. This is not an exhaustive list.”[19]The reference to “Appendix 8” was to the Headteachers Guidance, which was annexed to the policy. Appendix 8 was headed “Headteacher/senior manager Guidance on Absence Review Meetings”. The relevant paragraph said this: “1.8. There is discretion not to give a written warning where there is clear evidence that unsatisfactory attendance is unlikely to recur, for example: Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 5 of 69 ■ The absence(s) represent a spell of illness which is unusual and unlikely to recur in an otherwise excellent attendance record by a long term employee: ■ The absence(s) relate solely to a non-recurring illness/condition which has been successfully treated (e.g. fracture, routine operation) ■ A disabled employee is experiencing short term absences as a result of changes in their medication aimed at improving their condition ■ Occasional absences are an accepted part of the condition which a disabled person has and the service area is able to support these operationally ■ An employee has been absent due to a newly diagnosed condition/illness that is covered under the Equality Act.”[20]Where it was decided that a Formal Absence Review Meeting was required, the Policy provided that a meeting would be arranged on not less than 5 days working notice in writing. The employee had the right to be accompanied to the meeting by a Union representative or a work colleague. The Policy provided that at the meeting, unless there were clear reasons to withhold action the employee would be told they were being give a First Stage Warning about their attendance. That is, the default position was that a warning would be given unless not giving one could be justified. The Policy then went on to explicitly note that there was discretion to decide that a warning was inappropriate or not required; the policy referred to the same factors set out in paragraph 17.2 and the Headteachers Guidance. The Policy provided that a Stage One warning would expire after 12 months if attendance was satisfactory.[21]The Policy provided that if the Attendance Concern Levels were reached again (discounting any absence already taken into account in giving a previous formal warning), the school would consider inviting the employee to a further formal meeting. At that meeting, unless there were clear reasons to withhold or delay action, a stage two written warning would be given – once again, the Policy cross-referenced paragraph 17.2 and Appendix 8. A stage 2 warning would lapse after 12 months if attendance was satisfactory.[22]If Attendance Concern Levels were reached again after a second formal warning, the Policy provided that consideration would be given to inviting the employee to a Stage 3 capability hearing, which would take place before either a panel of Governors or the Headteacher (if authorised). The Policy provided that prior to convening a Stage 3 hearing, relevant enquiries and reports had to be obtained from Occupational Health, and that the Occupational Health report should then be discussed with the employee before deciding whether to convene a Stage 3 hearing [957]. The policy set out the process to be followed at a Stage 3 hearing [958]. It did not provide that the default position would be either dismissal or the imposition of a warning (as was the case at the earlier stages in the Policy). Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 6 of 69[23]The Policy provided for a right of appeal at each stage where a formal warning was given, and a right of appeal against dismissal.[24]The Policy in evidence before the Tribunal was dated 1 April 2012. There was no evidence before me regarding what policy was in place prior to that.[25]On 27 September 2010, the Claimant had a return to work meeting following a period of absence. At that point, she had had 12 days absence within the previous 6 months. There was no suggestion that a formal process was applied at that stage.[26]On 7 April 2011, the Claimant had a return to work meting following another period of absence. At that point, she had had 11 days sickness absence within the previous 6 months. There was no suggestion that a formal process was applied.[27]In late 2012 the Claimant was absent from work for a number of weeks [338, 340]. Once again, there was no suggestion that a formal process was applied.[28]It was put to the Claimant in broad terms that there must have been other periods between 2012 and 2019 when she would have met the Absence Concern Levels. She was not, however, taken in evidence to any specific six month period (prior to the end of 2018) when she had more than 10 days absence.[29]In the six months prior to 31 July 2019, the Claimant had 10 days absence across three separate absence periods – 22 March 2019, 26 June to 1 July 2019, and 4 – 11 July 2019 [376]. The Claimant was invited to a Stage 1 absence review meeting with Mr Baker, the Deputy Headteacher [377].[30]The meeting took place on 24 September 2019. Mr Baker decided not to take any formal action (although his letter did not record why, beyond stating that there were “understandable circumstances” for the absences) [379]. The first of the three absences related to an occasion where the Claimant had attended work with suspected shingles, but had been sent home as she had a colleague undergoing cancer treatment and who consequently had a compromised immune system.[31]The Claimant had a further two days absence on 16 and 17 December 2019. That meant that she had once again had three periods of absence in the preceding 12 months, totalling over 10 days (including the absences in June and July 2019).[32]The Claimant was invited to a further Stage 1 meeting with Mr Baker [385]. The meeting took place on 6 February 2020. Mr Baker decided to issue a Stage 1 warning. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 7 of 69[33]On 22 November 2020, the Claimant tested positive for COVID-19 (although she did not receive the test result until the early hours of 24 November 2020). Her husband had apparently started to feel unwell a few days before the Claimant; he also tested positive. The Claimant emailed the Respondent on 24 November 2020 to inform them of the positive test [392]. I do not need to make findings regarding the source of the Claimant’s COVID-19 infection.[34]The Claimant remained absent from work until 18 December 2020 – a total of 15 working days [405]. She returned to work at the start of the new term in January 2021.[35]The Claimant’s evidence was that on various occasions she raised with Mr Baker and with Ms Poole, the Head of Year, that she was concerned about her health. Her evidence was that she was told by Mr Baker that “there is no such thing as rest in teaching”, and told by Ms Poole that she “just had to get on with it”. Mr Baker accepted in evidence that he was aware that the Claimant was feeling tired during that period, and that the school was aware of it, although he denied saying “there is no such thing as rest in teaching”.[36]On 3 March 2021, the Claimant emailed Mr Baker and Geraldine Moffat, the Temporary Cover and Calendar Coordinator, as follows: [407] “I'm emailing to let you know that I won't be able to come into school on Thursday and Friday as I have symptoms of Long Covid. I have been feeling permanently exhausted since I returned to work after Christmas but have tried to plough on, putting it down to the new way of working. After returning to work after half term it has become clear that this is not the case because I continue to be permanently exhausted. I was advised by the doctor in January to rest as much as possible, but it's proving very difficult to do that with my current teaching load. I really don't want to go off sick, especially as the students are about to return to school, so I would like to discuss other options. I'm happy for you to call me at home if you need to.”[37]Mr Baker responded to indicate that he had tried to call the Claimant to discuss, and asked if she had seen her doctor about the symptoms. He explained that if she had been diagnosed then they may be able to suggested amended duties, which would give the school more scope to explore options. The Claimant responded later that afternoon. Regarding the diagnosis, she said this: “I spoke to the doctor on January 27th who advised me to rest. They said it sounded like Long Covid but they didn’t give me a specific diagnosis as they suggested a wait and see approach. I had a blood Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 8 of 69 test on Monday and have another appointment next Wednesday so can ask them about it again then. I can try to get an earlier appointment if necessary.”[38]The Claimant was then signed off work from 10 March 2021 to 23 March 2021. The reason given was “Fatigue. Hypothyroidism under treatment” [413]. The Claimant’s medication for her Hashimoto’s disease had to be adjusted. She was then signed off further until 7 April 2021, for the same reason.[39]On 26 April 2021, Mr Baker invited the Claimant to a Stage 1 Absence Review Meeting. Her absence record at that point showed three periods of absence in the six months ending on 31 March 2021: 39.1. A period of 15 days of 24 November 2020 to 18 December 2020 by reason of Covid 19, which was discounted for the purposes of Absence Concern Levels 39.2. A period of 2 days from 8 to 9 February 2021 by reason of Covid 19, which was discounted for the purses of Absence Concern Levels 39.3. A period of 17 days from 4 March 2021 to 7 April 2021, by reason of fatigue/hypothyroidism.[40]The two periods that were discounted were discounted pursuant to the Second Respondent’s position at the time (adopted by the First Respondent), which was that absence caused by Covid-19 should not be counted for the purposes of Absence Concern Levels.[41]The Absence Review Meeting took place on 4 May 2021. Mr Baker decided to give the Claimant a stage one warning. He confirmed his decision in a letter dated 5 May 2021. The warning was based only on the absence from 4 March 2021 to 7 April 2021.[42]The Claimant appealed the decision [427]. She noted in her appeal that there was a direct link between the absence and Covid, and that she understood that it should therefore be discounted.[43]On 7 May 2021, Mr Baker wrote to the Claimant. He indicated that if the Claimant had medical evidence providing a direct link between the absence and Covid, then a hearing may not be needed [432].[44]In the interim, the Claimant was referred to Occupational Health.[45]On 13 May 2021, the Claimant wrote to Mr Baker. She explained that her GP had confirmed to her that the hypothyroidism was caused by Covid, but that since he would have to write to the Occupational Health team in any event then there was no need for him to write to the school separately, as everything would be covered in the Occupational Health report [461]. It was Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 9 of 69 agree that the hearing would not take place until after the Occupational Health report was received.[46]The Claimant attended the Occupational Health appointment on 18 May 2021 [469]. The report noted that: 46.1. The Claimant had been signed off work from 4 March 2021 to 7 April 2021, with the condition having been triggered by Covid (possibly long Covid). 46.2. The Claimant was unfit for work, and was struggling with ongoing symptoms of long Covid, exhaustion, fatigue, chest pain, cold extremities, brain fog causing poor memory recall, difficulty concentrating, lack of focus and reduced mental acuity. 46.3. It was estimated that the Claimant would be unfit for work for 2 to 4 weeks, and that after that she would need phased hours. If she did too much it could set her recovery back, and pacing was a very important part of her recovery.[47]Thereafter, the Claimant was signed off work by her GP from 19 May 2021 to 21 June 2021, with the reason being “Long Covid” [476]. On 21 June 2021, the Claimant was signed off work again until 31 July 2021, with the reason again being given as “Long Covid”. The fit note further said this [599]: “Ongoing symptoms; chest pain, exhaustion, headaches, tingling, hard to concentrate, "brain fog". Medical certificate 23/3/21 stated hypothyroidism and fatigue (thyroid function tests were just marginally abnormal then * normal last month * change could have been caused by COVID. The fatigue symptoms more likely due to long COVID itself), Has been referred to the post-COVID clinic.”[48]The Claimant attended a meeting with Mr Baker on 22 June 2021 to discuss the OH report.[49]The Stage 1 appeal hearing took place on 24 June 2021 [492]. The hearing was conducted by Mr Hillier, the Headteacher. Mr Baker attended to present the management case. The Claimant was accompanied by her Trade Union representative, Mr Shellard.[50]Mr Hillier decided not to uphold the appeal. He wrote to the Claimant on 24 June 2021 to confirm his decision [626]. He expressed his reasoning as follows: “You stated in your appeal that you were absent due to hypothyroidism/fatigue caused by Covid, however, you also went on to say that this is a pre-existing auto immune condition that you have Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 10 of 69 had for over 20 years and certain things will trigger the fatigue, you explained how this was affected during the menopause. I have not been presented with any further evidence from your GP or a specialist that could support the theory that Covid was the sole and direct cause of this episode.”[51]The effect was that the Claimant remained on a Stage 1 warning.[52]The Claimant remained signed off work by reason of Long Covid (with some fit notes also mentioning “likely neuropathic pain”). She was seen by the Covid Aftercare Service in September 2021 [682].[53]The Claimant was seen by Occupational Health again on 13 October 2021. The report advised that the Claimant should be re-referred to be seen by the Occupational Health Physician prior to end of her next fit note, to explore a phased return to work in line with the outcome report from the long covid assessment. The Claimant’s current fit note at that time ran until 31 October 2021) [705].[54]The Claimant continued to be signed off work. She returned to work on 13 December 2021. Her return to work was on a phased basis. The phased return was originally planned to take place over 6 weeks. Her first week back was the last week of the autumn term, so she did no teaching in that week, but worked two mornings only in the school catching up on emails.[55]The Claimant was invited to a Stage 2 absence review meeting with Mr Baker on 27 January 2022 [781]. That was on the basis of her absence from 18 May 2021 to 12 December 2021 (a total of 87.4 working days). The Claimant requested that the meeting be postponed pending receipt of a report from the Occupational Therapist at the Post Covid Assessment and Support Service (who she had seen recently). Mr Baker did not postpone the meeting. He decided to give the Claimant a Stage Two warning under the Absence Management procedure. He also decided that: 55.1. The phased return to work would continue as planned. 55.2. The Absence Concern Levels would be adjusted to permit one additional absence, of up to 20 days, related to Long Covid, but would otherwise remain as set out in the policy.[56]Mr Baker agreed that he would review his conclusions on receipt of the report from the Occupational Therapist.[57]The Claimant’s report from the Occupational Therapist was dated 27 January 2022 [805]. The report advised that [1091]: 57.1. The Claimant would require a 12 week phased return to work Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 11 of 69 57.2. To manage her fatigue she should work half days, three times per week 57.3. She should gradually increase her hours after 6 weeks by an hour each week with the aim of returning to full time teaching in September 2022. 57.4. The respondent should consider using the Claimant’s skills to help children with additional needs or smaller groups as this may be less fatiguing and cognitively demanding than class teaching. 57.5. People with Post Covid Syndrome are at risk of a relapse if they attempt to do too much too soon.[58]Mr Baker wrote to the Claimant on 31 January 2022, after having reviewed the Occupational Therapist report, to confirm that the outcome of the Stage 2 meeting would remain as they had discussed [812].[59]On 10 February 2022, the Claimant had a meeting with Mr Baker. She explained that she had delivered three lessons plus a cover lesson the previous day, which had been too much. She explained that she felt that three lessons was her limit in a day at that stage [818].[60]The Claimant was absent from work on 3 March 2022 for one day, because of a flare-up of her Long Covid symptoms [838].[61]The Claimant continued to meet with Mr Baker throughout the Spring term to discuss her progress. This was recorded in her return to work plan. When she did not feel able to increase her teaching load, she said so, and it was not increased. The effect of that was that her phased return was extended.[62]On 21 March 2022, Mr Baker confirmed that the plan was that the Claimant would have a full teaching timetable after the Easter holidays.[63]The Claimant saw Occupational Health again on 23 March 2022 [856]. They advised that: 63.1. The Claimant continued to suffer from post covid symptoms including headaches, nerve pain, tingling around her chest, feeling excessively fatigued, and brain fog causing difficulties with cognitive abilities 63.2. Her condition was mainly characterised by excessive tiredness that could be aggravated by physical or mental activity. 63.3. The phased return to work that the Claimant was undertaking appeared appropriate, and that patients with long Covid required extended periods of phased return of anything between 8 weeks and 6 months.[64]The report recommended the following additional steps be taken 64.1.1. A workstation assessment Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 12 of 69 64.1.2. Support from management to find a suitable place for the Claimant to lie down during her break times would be beneficial. 64.1.3. Being exempted from having a tutor group would reduce the physical and mental strain and make her condition more manageable 64.1.4. Increased ventilation in the Claimant’s classroom would be beneficial[65]Occupational Health were specifically asked by the school to advise on who was best placed to advise on Long Covid, themselves or the Allied Health Professional (Occupational Therapist). The advice was that healthcare professionals work collaboratively, and it was appropriate for the Allied Health Professionals within the Long Covid clinic to write clinical letters summarising their interventions [858].[66]Mr Baker’s evidence, which I accept, was that the windows at the school could only be opened a certain amount, and it was not possible to open them any more widely because of the risk of students falling out of windows (or walking into ground floor windows).[67]On 28 March 2022, prior to the Easter holidays, the Claimant confirmed to Mr Baker that she was “good to go” with returning to a full teaching timetable after Easter [764].[68]From 25 April 2022, the first week after the Easter holidays (and the twentieth week of her phased return to work), the Claimant had a full teaching load, albeit that she had some cover lessons as part of her timetabled teaching load (for which she would not have to prepare work). She still had no form group, and no break duties.[69]After the half term break, the Claimant was also given a tutor group (during registration and tutor time). She was still not required to do break duties, or her additional literacy coordinator role.[70]The Claimant was absent from 27 – 30 June 2022 (four working days) due a flare up of nerve pain associated with long covid [877].[71]The timetable for the 2022/2023 academic year was finalised towards the end of the summer term in 2022. The plan was that the Claimant would be returning to a full teaching timetable, with form tutor responsibilities. She was given a higher than normal proportion of Reciprocal Reading and Extra English lessons on her timetable.[72]Reciprocal Reading was a lesson focused on reading and the associated skills. Extra English was an English lesson with a smaller group of learners who had particular struggles. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 13 of 69[73]Mr Baker’s evidence was that the Claimant was given more of those types of lesson as an adjustment along the lines recommended by the Occupational Therapist, so she had fewer full-class English lessons.[74]The Claimant’s evidence was that a Reciprocal Reading lesson still required preparation, although no marking, and that a skilfully planned and delivered reciprocal reading lesson required just as much effort as a “normal” lesson. She did not accept that it was less onerous than teaching a normal full-class lesson.[75]The Claimant’s evidence was that in teaching an Extra English lesson, there would be a greater and more varied level of need, so although there were not the same classroom management issues in managing a whole class, there were different lesson management issues. Her evidence was that in essence, the workload was equivalent.[76]On 18 August 2022, the Claimant emailed Mr Baker to update him regarding her progress over the summer holidays. She explained that she had had a follow-up appointment with the Post Covid clinic. She explained that she needed to rest four times a day for 30 minutes on her working days. She explained that she had been told that she was doing too much at work, and she had been referred to the return-to-work specialist for a further appointment, which she hoped would be either before the start of term or shortly thereafter. She concluded by saying that all the signs were that she would make a full recovery in time [879].[77]A further report was received from the Occupational Therapist, Ms Carr, on 24 August 2022 [880]. That report was also informed by an assessment of the Claimant by Dr Chan, Consultant Neurologist. The report noted that: 77.1. Not all of the recommendations in her previous report had been implemented, which had led to an exacerbation of the Claimant’s symptoms and sick leave. 77.2. Further adjustments were recommended for the next academic year, which it was suggested should be discussed with the Claimant (along with her Trade Union rep if possible). They were, in summary and insofar as relevant: 77.2.1. A 20 minute rest beak in the morning and another in the afternoon, with a protected lunch break; 77.2.2. A reduction in teaching time as five hours per day was not manageable; 77.2.3. Removing pastoral duty for her tutor group; 77.2.4. Consideration to using her skills to help children with additional needs or to offer smaller group work “as this may be less fatiguing and cognitively demanding than whole class teaching”; and 77.2.5. No requirement to attend non-essential meetings. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 14 of 69[78]On 31 August 2022, the Claimant emailed Mr Baker [883]. She noted that she thought the further recommendations would be sent directly to Mr Baker, and said it would be good to discuss them when he had received them. She noted that she had concerns about her timetable for September and the effect it would have on her recovery.[79]The Claimant emailed Mr Baker on Tuesday 6 September to ask if he had received the recommendations from the Occupational Therapist. He explained that he had not, and that he would be happy to set up a meeting but asked if would be worth waiting until he had that.[80]On Friday 9 September 2022, the Claimant had an accident at work. She bent down to place something on the floor, and when she stood back up she hit her head on the corner of a wooden shelf. She received first aid at school then attended A&E. She suffered from concussion, then subsequently from post-concussion syndrome. At that point, the Claimant had been back at work after the summer holiday for just over a week, in which time there had been an inset day and then a phased start to the term (whereby Year 7 started the September term a day before the other year groups).[81]Mr Baker had set up a meeting with the Claimant for 20 September 2022 to discuss the Occupational Therapist report, but the Claimant remained absent from work so the meeting was not able to take place. On 16 September she was signed off until 29 September 2022 [905]. She was then signed off again until 11 October 2022 [909].[82]On 11 October 2022, the Claimant attended a telephone assessment with the Respondent’s Occupational Health [920]. They advised that: 82.1. The Claimant was “temporarily unfit for work” due to the effects of post-concussion syndrome. 82.2. In respect of the post-concussion syndrome, the Claimant should be able to return within the next one to two weeks. 82.3. The recommendations in the August Occupational Therapist report appeared “entirely sensible clinically”, and on her return to work the Respondent should meet with her to discuss them and implement them as fully as it was feasible to accommodate.[83]On 12 October 2022 the Claimant saw her GP again. She was signed off work for a further two weeks, until 25 October 2022, with the reason for absence being given as “recovery from concussion”. The on 25 October 202 she was signed off for a further two weeks until 7 November 2022, with the reason again being “recovery from concussion” [930].[84]On 31 October, Mr Baker wrote to the Claimant to invite her to a Stage 3 Capability Hearing, which was to take place on 15 November 2022 [934]. The meeting was to be chaired by Mr Hillier. Mr Baker attached to the letter Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 15 of 69 a copy of the Management Statement of Case he had prepared [938], together with the evidence he intended to present at the hearing. In total, it amounted to well over 100 pages of material. The report noted that: 84.1. Since starting employment with the school, The Claimant had had a total of 168.8 days sickness absence (not including the present period of absence). 84.2. Since February 2021, a period of 20 months, the Claimant had not been able to teach a full teaching load for longer than 4 weeks without a period of sickness absence. 84.3. The decision to convene a Stage 3 Capability Hearing was made because none of the possible exemptions outlined in paragraph 17.2 or section 1.8 of Appendix 8 of the Sickness Absence Management policy applied in the case [944] 84.4. The decision to dismiss may be reached because there was no clear reason to withhold the action, as outlined in paragraph 18.2 of the policy [945]. 84.5. The policy provided that discretion may be applied in the circumstances set out in Appendix 8 section 1.8 of the policy. The report went on to say that none of those applied, so discretion should not be used and there was “no reason why a warning or dismissal cannot be issued”. 84.6. Based on the Occupational Therapist report, it appeared that the Claimant was unlikely to be able to teach a full timetable within the next year without considerable adjustments. 84.7. The report then concluded that the Claimant should be dismissed on the grounds of capability.[85]Prior to being invited to the Stage 3 Capability Hearing, the Claimant had not met with Mr Baker to discuss the Occupational Therapist report from August 2022, nor the Occupational Health report from October 2022.[86]On 7 November 2022, the Claimant’s Trade Union representative, Mr Shellard, emailed Mr Baker. He asked for a postponement of the Stage 3 hearing to allow the Claimant time to obtain the necessary medical information. He also noted that the Claimant would need time to process all of the information [1102].[87]The hearing was then postponed to 21 November 2022. Mr Baker asked about rearranging the meeting to discuss the Occupational Health report. Mr Shellard suggested the Thursday or Friday of the week prior to the Stage 3 hearing. Mr Baker then explained that he could not do anything in that week. Mr Shellard noted that that would mean that the recommendations in the Occupational Health and Occupational Therapist reports could not be discussed prior to the Hearing. He asked if they would therefore be discussed in the hearing. Mr Baker responded that he did not think the hearing was the place to discuss the recommendations, but they could be Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 16 of 69 discussed if they formed part of the Claimant’s response to the management statement of case [1100].[88]Mr Baker’s evidence was that he was advised by HR that, as they had had to postpone a previous meeting regarding the Occupational Therapist and Occupational Health advice because of the Claimant’s ill health, it was appropriate to progress straight to the Stage 3 hearing without having discussed them.[89]In the interim, on 8 November 2022 the Claimant was signed as unfit for work for a further two weeks, to 21 November 2022. The reason given was once again “recovery from concussion”.[90]The Stage 3 hearing then took place on 21 November 2022. The meeting was conducted by Mr Hillier with advice from an HR Consultant from the Second Respondent. Mr Baker presented the management case, again supported by an HR consultant from the Second Respondent. The Claimant was accompanied by her Trade Union representative, Mr Shellard.[91]The meeting lasted around an hour and a half (with a 15 minute break). There was limited discussion of the Occupational Therapist and Occupational Health reports, although Mr Baker explained why he considered that the adjustments recommended were not operationally sustainable.[92]At the end of the hearing, Mr Hillier explained that he would take some time to consider his decision [1112].[93]On 22 November 2022, the Claimant received a further fit note signing her off for one month until 21 December 2022. The reason given for the absence was “Long Covid, post-concussion syndrome, stress” [1114]. She forwarded it to the school on the following day [1113][94]On 25 November 2022, Mr Hillier wrote to the Claimant to explain that he had taken the decision to dismiss her on notice, with her notice expiring on 31 April 2023. He expressed his reasons for that decision as follows [1120]: “My reasons for reaching this decision are that since February 2021, you have not been able to teach a full teaching load for longer than 4 weeks without a period of sickness absence. You have only managed to teach for more than two consecutive weeks on three occasions during this period. I heard from Mr Baker that the school has already made a number of adjustments to support your return, including a 26-week phased return. Unfortunately, the evidence presented showed that none of these interventions have had the desired affect and enabled you to return fully to work. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 17 of 69 Mr Baker outlined that none of the four possible exemptions to not give consideration to holding a stage 3 capability hearing were applicable in your case. Mr Baker stated that he thought it likely that you would be covered by the disability provision of the Equality Act 2010, and has considered reasonable adjustments in line with this. I agree with Mr Baker’s assertions relating to consideration being given to a final written warning or dismissal have not been met. In summary:• Your attendance record could not be described as ‘excellent’ and unlikely to occur again in future.• Your condition is not ‘non-recurring’ and has not been successfully treated.• Your absence is not considered to be short-term and as a result of a change in medication.• Your absences have not been considered occasional and your absence hasn’t been brought about by a newly diagnosed condition covered by the Equalities Act. The evidence provided by your most recent occupational health report outlines that you are unlikely to be able to teach a full timetable within the next year, without considerable adjustments. I again concur with Mr Baker’s view that it isn’t operationally possible for the adjustments to be made and agree with the conclusion of the occupational health report which suggested that this will exacerbate your symptoms and cause more sickness absence. I was pleased to learn from you at the hearing that you felt that your health was improving from your recent bout of concussion, however, you accepted that you are still not recovered from long covid and outlined the some of the adverse effects that you were still currently experiencing. In addition to considering your own wellbeing I also have to balance this against the fact that the children that you teach require continuity and stability to allow them to achieve and thrive. I am concerned that your continuing absence has had, and would have, a negative effect on their learning in future as a result of your repeated absences. You informed me that you had understood the impact of your absence on the students. Whilst I accept and am indeed grateful for the cover arrangements that have been put in place to cover your absence, this is not appropriate in the long term. At the hearing Mr Baker outlined that your absence has also had a negative impact on colleagues within the English Department, with them being unable to undertake as much intervention work, as they have had to pick up additional work. I would like to again, reiterate Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 18 of 69 that you are in no way to blame for this, but is an unfortunate side effect of your sickness absence. I listened to the comments put forward by your Trade Union Representative, Mr Shellard, regarding you being unlikely to be eligible for III Health Retirement and my understanding was that you were broadly in agreement with this. However, I fully respect that none of us in attendance at the hearing are qualified medical professionals to confirm such a decision and as such would like for you to be offered the opportunity for the school to put forward an Occupational Health Referral to ascertain in their opinion whether this maybe applicable in your circumstances. Should you specifically not wish me to make this referral please do let me know by no later than Friday 2 December 2022 at 3pm.”[95]With that letter, he enclosed a copy of a document from Mr Baker responding to the recommendations made by the Occupational Therapist in August 2022. That document had not previously been seen by the Claimant (although Mr Baker had read it out a the Stage 3 hearing). Insofar as relevant, it said that [1118]: 95.1. A 20 minute break in the morning could be accommodated, but a break in the afternoon could not be accommodated. The reason given was that “It is not possible to refigure the Claimant’s timetable at this stage in the year to ensure she is not teaching both periods in an afternoon whilst still maintain her teaching load”. Mr Baker explained in evidence that what he meant was not that it was not possible to change the timetable, but rather that doing so would have meant dropping the Claimant’s teaching hours. 95.2. A reduction in teaching load would not be possible without a change in pay.[96]Mr Baker’s evidence was that a change in contract (and consequently in pay) would have required the Claimant to make a flexible working request. That did not appear to be something which had been suggested to the Claimant at any point.[97]The Claimant was subsequently signed as unfit to work until 19 January 2023.[98]The Claimant was assessed by Occupational Health again on 3 January 2023 [1142]. The advice was that it had taken the Claimant eight to nine weeks to feel fully recovered from her head injury. The advice was that she would be unable at that stage to manage teaching duties full-time although she would (by the time of her assessment) have returned to work following her head injury if she had not been dismissed. Regarding ill health early retirement, the advice was that based on her recovery to date, with further Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 19 of 69 recovery still hoped, the physician was “guarded” as to whether she would be deemed eligible.[99]The Claimant appealed her dismissal. However she subsequently withdrew her appeal on 20 January 2023. She was told that she did not need to tender further fit notes, and she did not do so. Her notice period was to expire on 31 April 2023.[100]The Claimant’s evidence was that she would have been fit to go back to work from 20 January 2023, although perhaps not to a full teaching schedule.[101]Her evidence was also that she started applying for other work in February 2023. She obtained a new job to start soon after her dismissal, and started work on 2 May 2023.[102]Another member of staff within the English Department, Holly Taylor, was also suffering from Long Covid at the same time as the Claimant. There was some dispute before me regarding what her timetable would be for the 2022/23 academic year. The Claimant adduced as evidence a compound timetable for the entire English department, which showed almost all of Ms Taylor’s timetabled time as being “support”. The point only arose for the first time during the Claimant’s evidence.[103]The Respondent produced an individual timetable for Ms Taylor dated 1 September 2022 which showed that she was timetabled specific classes. Some of the classes she was timetabled were classes which the compound timetable showed were being taught by the Claimant, and Ms Taylor’s individuals timetable showed those classes as being taught in the Claimant’s classroom – specifically: 103.1. A year 8 and a year 9 class on Monday of Week 1 103.2. A Year 8 class on Wednesday of Week 1 103.3. A Year 8 class on Thursday of Week 1 103.4. A year 8 class after lunch on Monday of Week 2 103.5. A year 8 class on Wednesday of Week 2 103.6. A Year 8 class on Thursday of Week 2[104]Mr Baker’s evidence was that Ms Taylor was to be “team teaching” the classes shown on that timetable, as an adjustment to support her return to work. “Team teaching” is where two teachers teach a class together. Depending on the lesson, one might take the lead while the other supported, or they may carry out different roles within the classroom. Mr Baker’s evidence was also that Ms Taylor was dismissed by reason of incapability at some point after the Claimant, although he could not remember exactly when.[105]The Claimant’s evidence was that she had not been told that Ms Taylor would be “team teaching” with her. Her evidence was that when the Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 20 of 69 compound timetable said “Support”, that had previously meant small group intervention work.[106]The Claimant notified ACAS under the early conciliation process of a potential claim on 22 February 2023 and the ACAS Early Conciliation Certificate was issued on 30 March 2023. The first claim was presented on 27 April 2023.[107]The Claimant notified ACAS of the second potential claim on 19 May 2023, and the Early Conciliation certificate was issued on 22 May 2023. The second claim was presented on 25 July 2023. Law (liability) Equality Act 2010 Protected characteristics[108]Disability is a protected characteristic. The definition of disability is set out in section 6 of the Act. Discrimination arising from disability[109]The definition of discrimination arising from disability is set out in s.15 of the Equality Act 2010: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[110]“Unfavourable” is not defined in the statute. The EHRC Statutory Code of Practice provides that it means that the disabled person “must have been put at a disadvantage”.[111]Guidance for Tribunals on how to approach the test in s.15 was set out by the EAT in Pnaiser v NHS England [2016] IRLR 170: “(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 21 of 69 (b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram’s submission (for example at paragraph 17 of her Skeleton). (d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) For example, in Land Registry v Houghton UKEAT/0149/14 a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 22 of 69 (g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages - the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability. (h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.”[112]The Respondent does not need to have knowledge that the “something” leading to the unfavourable treatment was a consequence of the claimant’s disability (City of York Council v Grosset [2018] ICR 1492).[113]The burden of establishing objective justification rests on the Respondent. There is a two-stage test: 113.1. First, the respondent must be pursuing a legitimate aim. 113.2. Secondly, the unfavourable treatment must be a proportionate means of achieving that legitimate aim. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 23 of 69[114]The proportionality limb involves assessing whether the treatment was “reasonably necessary” (Homer v Chief Constable of West Yorkshire Police [2012] ICR 704). It is necessary for the Tribunal to critically evaluate the proportionality defence (Gray v University of Portsmouth [2021] 6 WLUK 702]).[115]Where an employer has failed in its duty to make reasonable adjustments which would have allowed an employee to remain in employment, dismissal is unlikely to be justified (Griffiths v Secretary of State for Work and Pensions [2017] ICR 160). A failure to make reasonable adjustments at an earlier point in time may also be a relevant factor (Monmouthshire County Council v Harris EAT 0332/14).[116]The steps an employer takes, or fails to take, in a procedure leading to dismissal may be a relevant consideration in assessing proportionality (Department for Work and Pensions v Boyers [2022] EAT 76).[117]It is for the respondent to evidence the severity of impact of the employee’s continued absence (O’Brien v Bolton St Catherine’s Academy [2017] ICR 737). Failure to make reasonable adjustments[118]The duty to make reasonable adjustments is set out in section 20 of the Equality Act 2010: Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. […][119]Paragraph 8 of Schedule 20 of the Act provides that an employer is not subject to the duty to make reasonable adjustments if he or she does not know, and could not be reasonably be expected to know that the claimant:a. Has a disability; andb. Is likely to be placed at a disadvantage by the employer’s provision, criterion or practice, the physical features of the workplace or a failure to provide an auxiliary aid. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 24 of 69[120]The Tribunal must therefore ask itself two questions: c. Did the employer both know that the employee was disabled and that the disability was liable to put the employee at a substantial disadvantage? d. If not, ought the employer to have known both of those thing?[121]If the answer to both questions is “no”, the duty to make reasonable adjustments is not triggered.[122]The Equality and Human Rights Commission Code of Practice provides that employers must “do all they can reasonably be expected to do” to find out whether an employee has a disability. If an employer’s agent or employee knows in that capacity that an employee is disabled, the employer will have imputed knowledge of that disability.[123]In the context of section 20, the word “substantial” means “more than minor or trivial” (s.212(1) EqA 2010).[124]The ECHR Code of Practice provides that the phrase “provision, criterion or practice” should be construed widely.[125]When considering whether the duty to make reasonable adjustments is engaged, the Tribunal must consider the PCP identified by the claimant. The PCP must be properly identified (Secretary of State for Justice v Prospere [2015] 3 WLUK 676).[126]In order to find that an employer has breached the duty to make reasonable adjustments, the tribunal must identify the step or steps that it would have been reasonable for the employer to take. The adjustment must be a practical step or action as opposed to a mental process (General Dynamics Information Technology Ltd v Carranza [2015] ICR 169).[127]In considering whether a step would have been reasonable, one factor the Tribunal must consider is whether it would have been effective in alleviating the disadvantage to the employee. An adjustment may still be reasonable even there is no guarantee that it would have been successful (Griffiths v Secretary of State for Work and Pensions [2017] ICR 160).[128]The question of whether an adjustment would have been effective must be answered on the basis of the evidence available at the time the decision on whether or not to implement it was taken (Brightman v TIAA Ltd EAT 0318/19). Burden of proof[129]Section 136 of the Equality Act deals with the burden of proof: Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 25 of 69 “(2) If there are facts from which the [tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the [tribunal] must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene that provision”[130]Section 136 of the Equality Act prescribes a two-stage process. At the first stage, there must be primary facts from which the tribunal could decide, in the absence of any other explanation, the discrimination took place. All that is required to shift the burden of proof is at primary facts from which “a reasonable tribunal could properly conclude” on balance of probabilities that there was discrimination. It must, however, be something more than merely a difference in protected characteristic and the difference in treatment (Madarassy v Nomura Internatiojnal PLC [2007] EWCA Civ 33.[131]The burden of proof at that stage is on the claimant (Royal Mail Group v Efobi [2021] UKSC 22). The employer’s explanation is disregarded.[132]If the claimant satisfies that initial burden, the burden shifts to the employer at stage 2 to prove one balance of probabilities that the treatment was not for the prescribed reason.[133]In respect of reasonable adjustments claims, the burden of proof shifts only once the Claimant has established that the duty to make reasonable adjustments had arisen, and that there were facts from which it could reasonably be inferred (absent explanation) that it had been breached (Project Management Institute v Latif [2007] 5 WLUK 216). In the same case, the EAT noted that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not. Unfair dismissal[134]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that they were dismissed by the respondent under section 95.[135]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 26 of 69[136]Both redundancy and capability are potentially fair reasons for dismissal.[137]Section 98(4) then deals with the question of fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[138]In considering dismissal for long term ill health, the Tribunal must consider whether the employer can be expected to wait any longer for the employee to return (BS v Dundee City Council [2014] IRLR 131)[139]The employer must consult with the employee about the proposed dismissal, and discover the true medical position (East Lindsey District Council v Daubney [1977] ICR 566).[140]The Burchell test is applicable to dismissals for long term ill health – the employer must:• Genuinely believe that the employee is incapable of returning to their post;• Have carried out reasonable investigation into the position; and• Have reasonable grounds for that belief; (DB Schenker Rail (UK) Ltd v Doolan EAT 0053/09)[141]It is not for the Tribunal to substitute its own view on whether to dismiss; rather, the question for the Tribunal is whether dismissal was in the range of responses open to a reasonable employer. Polkey[142]In the case of Poley v AE Dayton Services Ltd [1987] UKHL 8, the House of Lords set down the principles on which a Tribunal may make an adjustment to a compensatory award on the grounds that if a fair process had been followed by the respondent in dealing with the claimant’s case, the claimant might have been fairly dismissed. Further guidance was given in the cases of Software 2000 Ltd v Andrews [2007] ICR 825; W Devis & Sons Ltd v Atkins [1977] 3 All ER 40; and Crédit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604.[143]In undertaking the exercise of determining whether such a deduction ought to be made, the Tribunal is not assessing what it would have done; it is assessing what the employer would or might have done. It must therefore assess the actions of the employer before it, on the assumption that the employer would this time have acted fairly though it did not do so Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 27 of 69 beforehand: Hill v Governing Body of Great Tey Primary School [2013] IRLR 274 at para 24.[144]A similar principle applies in discrimination claims – Abbey National Plc v Chagger [2009] EWCA Civ 1202. Conclusions (liability) Disability[145]It was common ground that the Claimant had a disability within the meaning of the Equality Act 2010 at all relevant times by reason of both Hashimoto’s and Long Covid. Reasonable adjustments[146]I deal first with the complaint of failure to make reasonable adjustments. In respect of the first claim, the Claimant relied upon three PCPs: 146.1. That its teachers working at the First Respondent should attend work regularly. 146.2. That its teachers working at the First Respondent should teach a full workload. 146.3. That its teachers working at the First Respondent should have a tutor group.[147]There was no suggestion that there was any dispute regarding whether the alleged PCPs relied upon were applied by the Respondents to the Claimant. It was in any event clear on the evidence before me that they were PCPs which were applied to the Claimant, in that: 147.1. There was an expectation, codified in the Absence Management Policy, that the Claimant (and other employees) should attend work regularly. 147.2. There was an expectation that the Claimant and other teachers should have a full teaching workload, as set out in her job description; 147.3. There was an expectation, again set out in the Claimant’s job description (and, I accept, those of other teachers at the school) that in addition to classroom teaching they should have a tutor group.[148]It was also not suggested to me in terms that there was any dispute over whether the PCPs put the Claimant at a substantial disadvantage compared to people who were not disabled. I am satisfied that they did so. There was clear evidence before me that: 148.1. The Claimant’s long covid caused her to have time off work, and also caused her to become tired more quickly, particularly when teaching a full timetable, which in turn led her to take time off work. That interacted with her Hashimoto’s. The combined effect of the two Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 28 of 69 conditions was to cause the Clamant to have more time off work than a comparable employee without her conditions.[149]It was conceded that the Respondent had knowledge that the Claimant was disabled by reason of Hashimoto’s at all relevant times, and by reason of Long Covid from May 2021. The concession was not a model of clarity; it did not specify a date in May 2021 from which knowledge was conceded. There is only one point at which the Claimant says an adjustment ought to have been made prior to the end of May 2021. That was on 5 May 2021 (the date on which the Stage 1 Absence Warning as imposed by Mr Baker). As at that date: 149.1. The Claimant’s absence had been recorded on her fit note as being by reasons of fatigue and hypothyroidism. 149.2. The Claimant had reported to Mr Baker that she had been told by her GP that her symptoms sounded like long covid, but that she had not been given a formal diagnosis. 149.3. The Claimant had told Mr Baker that she had been suffering from tiredness.[150]Taken in the round, I conclude that the Respondent did not have either actual or constructive knowledge that the Claimant was disabled by reason of long covid on 5 May 2021. That is because: 150.1. The high point of what the Claimant had told the Respondent at that time was that she had been told that her symptoms sounded like long covid. She had not been formally diagnosed, and it was apparent that it was not clear to what extent her symptoms were caused by the long covid. 150.2. Because there was at that point a marked lack of clarity about the underlying cause of the Claimant’s sickness absence, given that the fit note had not referred to long covid, there was no basis for Mr Baker to have concluded that the long covid had a significant effect on the Claimant’s ability to carry out ordinary day to day activities. She was suffering from fatigue, and had had to have some time off work; but the medical evidence available to the school at the time did not suggest that the absence was caused by long covid. 150.3. There was in any event, at that early stage, nothing to suggest that there was a real possibility that the Claimant’s long covid would last for 12 months or more.[151]In terms of knowledge of substantial disadvantage, I consider that the school had the requisite knowledge in respect of the Claimant’s long covid from receipt of the Occupational Health report of 18 May 2021. It was not entirely clear when that report was first seen by the school as there was some delay in it being released because the Claimant requested changes to it; but Mr Baker met the Claimant to discuss it on 22 June 2021, so the school must have had it by then (at the very latest). The next date on which Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 29 of 69 the Respondents were said to have failed to have made reasonable adjustments was 24 June 2021.[152]The Respondents had of course conceded knowledge of disability from May 2021 – that must at least have meant knowledge by the end of May 2021. So in light of the concession I did not strictly need to reach a conclusion regarding whether the Respondent had knowledge by 24 June 2021; but had it been necessary to do so, I would have found that they had constructive (if not actual) knowledge by that date, given the contents of the Occupational Health report.[153]I then turn to consider the adjustments. 13(b) Discounting the Claimant’s Covid-19 related absences from work?[154]This is relied upon as a failure to make reasonable adjustments on four occasions: 5 May 2021, 24 June 2021, 31 January 2022, and 21 November 2022. 5 May 2021[155]I have conclude that the Respondent did not have knowledge that the Claimant was disabled by reason of long covid on 5 May 2021. So the duty to make reasonable adjustments had not arisen, and that aspect of the claim cannot succeed. 24 June 2021[156]24 June 2021 was the date of the Stage 1 appeal hearing. At that hearing, Mr Hillier decided not to overturn the First Formal Warning. So the adjustment sought, in essence, was for Mr Hillier to have overturned the warning on appeal. The only absence taken into account was the one in March and April 2021.[157]The original fit note dated 23 March 2021 had given the reason for absence as “Fatigue. Hypothyroidism under treatment”. “Fatigue” was the first cause listed on the March fit note. The June fit note advised that those symptoms were more likely due to long covid. The June fit note also explained that the thyroid function tests were just marginally abnormal. It then said that the hypothyroidism could have been caused by Covid. But in my judgment, read together, the prevailing advice was that the predominant cause of the absence in March and April 2021 was long covid. If that absence had been discounted, the effect would there have been that the First Formal warning be overturned.[158]Mr Hillier’s evidence was that at the time the Long Covid “wasn’t counted” under the Equality Act. That may very well have been his understanding at the time; but the Respondents have accepted that they had knowledge that the Long Covid was a disability from May 2021 onwards, and Mr Hillier is fixed with that. His decision at the time also Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 30 of 69 appeared to be predicated on the basis that he was not satisfied that the absence in March and April 2021 was related to Covid. For the reasons I have already set out, that was not right.[159]What I cannot lose sight of, however, is that that absence had occurred at a time when the Respondent was not under a duty to make reasonable adjustments. In my judgment, it would drive a coach and horses through the legislation to find that the Respondent had failed to make a reasonable adjustment by failing to discount a period of absence which occurred at a time when it was not under any duty to make adjustments.[160]It must also be seen in context. By 24 June 2021, the Claimant was over a month into a further period of sickness absence by reason of long covid, with no end in sight. At that stage, discounting all covid-19 and long-covid related absence would have been akin to a blank cheque. That would not, in my judgement, have been a reasonable step to have taken, given the need for the school to have staff present to deliver education to pupils.[161]So I consider that Mr Hillier did not fail to make reasonable adjustments by discounting the Claimant’s Covid-19 related absences from work in June 2021.[162]It follows then that this aspect of the claim does not succeed. 31 January 2021[163]31 January 2022 was the date on which the Claimant was given a Stage 2 warning. The warning was imposed in respect of a single period of absence, which had lasted for 87.4 (working) days, and all of which had been due to the Claimant’s long covid. So discounting the Covid-19 related absence would have meant not imposing a Stage 2 formal warning.[164]In terms of whether discounting the claimant’s Covid-19 related absence would have been a reasonable adjustments to have made at that stage: 164.1. The Claimant had been absent for well over a term. 164.2. The school had recognised that some allowance should be made to its normal absence concern levels to take account of the Claimant’s disability. It made that adjustment prospectively, by adjusting the absence concern level going forward. Had it adjusted the absence concern level by the same amount looking backward over the absence being considered at that meeting, that would have made no difference to the imposition of the Stage 2 warning. The Claimant’s absence exceeded the 30 days of the adjusted absence concern level (the normal absence concern level plus the additional 20 days), by very nearly a factor of three. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 31 of 69 164.3. The school had to be mindful of the needs of the pupils, as well as of other members of staff. Self-evidently the Claimant’s workload had to be covered while she was absent. It was not the case that the work could be put off, or done in a different way or at a different time – the classes still needed to be taught. That necessarily put a strain on the remaining members of staff. It also meant a reduction in continuity for students, versus having a single English teacher.[165]In all of the circumstances, I conclude that it would not have been a reasonable adjustment to have discounted all of the Claimant’s covid-19 and long covid absence at that stage. The school made a reasonable adjustment by adjusting the absence concern level prospectively. It follows that this aspect of the claim does not succeed. 21 November 2022[166]21 November 2022 was the date of the Stage 3 Absence Hearing. At that point, absence for which the Claimant was being considered was the concussion and post-concussion syndrome. Her absence at that stage was not by reason of long covid So discounting the Covid-19 related absences would, in essence, have meant revoking or setting aside the first and second stage formal warnings.[167]For the same reasons I have already explained, doing so would not have been a reasonable adjustment. So this aspect of the claim does not succeed. 13 c) Following the Claimant’s medical reports e.g. by not requiring the Claimant to teach a full workload and not have a tutor group[168]This related to: 168.1. A request for a reduced workload from January 2021 168.2. The adjustments recommended by the reports of: 168.2.1. 18 May 2021 168.2.2. 13 October 2021 168.2.3. 27 January 2022 168.2.4. 23 March 2022 168.2.5. 24 August 2022 168.2.6. 11 October 2022[169]Taking each of those in turn: January 2021[170]I have found that the Respondent did not have actual or constructive knowledge of the disability of long covid at that point. It was not suggested to me that the adjustment was required in respect of the Claimant’s Hashimoto’s, although there was a degree of overlap between the two Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 32 of 69 conditions. So this element of the claim could not succeed on that basis, because the duty to make reasonable adjustments in respect of long covid had not arisen.[171]In any event, the high point of the Claimant’s case in this regard appeared to be that she had emailed Mr Baker and others on 3 March 2021 to tell them that she had been advised by her doctor to “rest as much as possible” in January. I do not consider that that could be described as a “report”. The wording in the List of Issues was lifted directly from the Claimant’s particulars of claim. Neither the Respondents nor the Tribunal could sensibly have understood that the reference to “medical reports” was intended to encompass a verbal recommendation allegedly made to the Claimant by her GP, and referred to by the Claimant in an email to her manager almost two months later. So I would in any event have found that that was not an adjustment being claimed; and I would not have permitted the Claimant to amend her claim at trial to rely on it. It would not have been in the interests of justice to do so at such a late stage, where the Claimant has been legally represented throughout.. 18 May 2021[172]The advice in the Occupational Health report of 18 May 2021 was that the Claimant would require a phased return to work. The Claimant did not then return to work until December 2021. When she did so, her return was phased (over a significant period). So the adjustment was made. There was no failure in respect of that advice. This element of the claim does not succeed 13 October 2021[173]The advice in the Occupational Health report of 13 October 2021 was that the Claimant be referred to the Occupational Health Physician to explore a phased return to work in line with the outcome report from the Long Covid Assessment.[174]The Claimant was not then referred to the Occupational Health Physician prior to her return to work. That cannot have been a failure to make reasonable adjustments, because it was not a step which was capable of overcoming the disadvantage the Claimant was put to. The substantive point, though, is that what was being recommended was a phased return to work. The Claimant was given a lengthy phased return to work, so the adjustment was made. There was no failure to make reasonable adjustments in respect of that advice. This element of the claim does not succeed. 27 January 2022[175]The Occupational Therapist report of 27 January 2022 was slightly confused. On one hand, it recommended a phased return to work over 12 weeks, which would have implied the phasing coming to an end in late April Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 33 of 69 2022 . On the other hand, it also referred to the Claimant aiming to return to full time teaching in September 2022.[176]In the event, the Claimant’s phased return to work lasted considerably longer than 12 weeks. She returned to something close to a full teaching load after the half term break in June 2022; but even then she did not have break duty (or her leadership role). The aim was then that she would return to full time teaching from the start of the following academic year. I consider that the recommendation in respect of the phased return to work was complied with in substance; so there was no failure to make adjustments in respect off that recommendation.[177]The other recommendation from that report was that the school should consider using the Claimant’s skills to help children with additional needs or smaller groups, as this may be less fatiguing and cognitively demanding than class teaching (my emphasis).[178]The Claimant did, in the event, teach full classes. From September 2022 she was then given a higher proportion of Reciprocal Reading and Extra English lessons. I accept that that was done in an attempt to give the Claimant a lighter teaching load. It is in my judgment relevant that the Claimant’s own evidence was that: 178.1. The Extra English, which involved a smaller group of children with additional needs, was every bit as cognitively demanding as teaching a full class. 178.2. Although Reciprocal Reading did not involve marking, it involved as much preparation, skill and effort as teaching a normal class English lesson.[179]Mr Baker referred in his evidence to the Claimant’s perfectionism, and referred intervention work as being “intense”. That was consistent with the Claimant’s own evidence regarding the Reciprocal Reading and Extra English lessons. It is telling that the Occupational Therapist report only said that small group work with children with additional needs “may” be less fatiguing and cognitively demanding. I heard evidence on the point from two experienced teachers, Mr Baker and the Claimant. Based on that evidence, I consider on balance that small group work with children with additional needs or intervention work would, when done by a diligent and committed teacher like the Claimant, not have reduced her fatigue or cognitive load.[180]It follows then that I conclude that it would not have been a reasonable adjustment, because on the evidence before me it would not have worked. And in reaching that conclusion, I bear in mind that when the Respondent did try to reflect the Occupational Therapist advice by giving the Claimant a higher proportion of Extra English and Reciprocal Reading lessons in her timetable for 2022/23, the Claimant’s evidence was that would not have helped. I bear in mind also on 28 March 2022, the Claimant Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 34 of 69 told the school that she was ready to return to a full teaching timetable after Easter. The Claimant had shown that she was well able to say when she was struggling; she did at earlier points in her phased return to work, and when she did so, the school took that on board.[181]So it follows that there was no failure in respect of any of the recommendations in that report. This element of the claim does not succeed. 23 March 2022[182]The Occupational Health advice of 23 March 2022 made the following recommendations: 182.1. A workstation assessment – this was not done. It is not clear, however, how a workstation assessment would have overcome the substantial disadvantage the Claimant was put to by the PCPs applied by the Respondent. That is not how the claim has been advanced in the Tribunal. This therefore cannot succeed as a reasonable adjustments claim. 182.2. Support from management to find a suitable place for the Claimant to lie down during her break times would be beneficial. The Claimant did locate a place to lie down during break times (albeit in a cupboard). It was not suggested to me that there was more the school ought to have done, within the physical confines of the building, to locate a suitable space for the Claimant. 182.3. Being exempted from having a tutor group would reduce the physical and mental strain and make her condition more manageable. This adjustment was made, within the context of the phased return to work. The Occupational Health advice certainly did not suggest that that was an ongoing adjustment – it referred to the Claimant’s “continuing symptoms”. The adjustment remained in place for a further three months after the Occupational Health advice, and the tutor group was reintroduced as part of the phased return to full duties. Once again, I do not consider that that could be said to be an adjustment that the respondents failed to make. 182.4. Increased ventilation in the Claimant’s classroom would be beneficial – once again, I do not see that this would have overcome any of the substantial disadvantages to which she was put by the Respondent’s PCPs. And in any event, the ventilation could not be increased without opening the windows further, which would have conflicted with the prevailing health and safety advice. It would not have been reasonable to have required the school to open the windows in a way that put students at risk. So it cannot succeed as a reasonable adjustments claim. This element of the claim does not succeed. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 35 of 69 24 August 2022[183]The Occupational Therapist report of 24 August 2022 recommended: 183.1. A 20 minute rest break in the morning and another in the afternoon, with a protected lunch break; 183.2. A reduction in teaching time; 183.3. Removing pastoral duty for the Claimant’s tutor group; 183.4. Consideration to using her skills to help children with additional needs or to offer smaller group work; and 183.5. No requirement to attend non-essential meetings.[184]The final of those adjustments was already in place.[185]The Claimant was absent from work from a little over a week into the new term, and before Mr Baker had had the opportunity to review the Occupational Therapist report and discuss it with her. In the circumstances, I do not consider that it could be said that the Respondents acted unreasonably in failing to make those adjustments within (essentially) the first week of a new term, and in circumstances where the previous Occupational Therapist advice had been geared towards the Claimant resuming her full duties with effect from the start of the new term in September 2022.[186]It was reasonable also for the school to want to discuss the adjustments with the Claimant. They were adjustments which would have had a significant effect on the timetable for the English department. The Occupational Therapist report was (understandably) somewhat open, in the sense that it did not suggest in detail how those adjustments could or should operate. And it could not be said that the school had acted too slowly by failing to discuss the advice before the Claimant suffered her injury early in the new term.[187]The Respondent could not have had a detailed discussion with the Claimant about the report during the early part of her concussion absence, because she would not have been well enough to engage in that discussion. The first point at which it could be said that the Respondent had failed to make the adjustments was at or shortly prior to the Stage 3 hearing (by which point she was obviously well enough to attend a meeting). But at that point the adjustments would not have been effective, because the Claimant was absent from work. Importantly, she was not absent from work because of her long covid symptoms (or indeed her Hashimoto’s). It was not a circumstance where she needed the adjustments in order to return. Whether or not the adjustments had been made, she could not have returned to work at any point between 9 September 2022 and the decision being taken to dismiss her. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 36 of 69[188]The Claimant’s case was that the adjustments that the school made for Holly Taylor proved that she could have had similar adjustments. That may be right, although of course I have not seen the advice the school was presented with in respect of Ms Taylor. But the issue simply never arose, because the Claimant was not in a position to discuss with the school how to implement the Occupational Therapist recommendations.[189]In the circumstances, I conclude that the Respondents could not be said to have failed to make the adjustments set out in the Occupational Therapist report of 22 August 2022. 11 October 2022[190]The Occupational Health advice of 22 October 2022 was that the Occupational Therapist recommendations looked “entirely sensible clinically”, and that the school should meet with the Claimant to discuss them.[191]For the same reasons as I have already set out, the Respondent could not be said to have failed to have made a reasonable adjustment by not implementing those recommendations. 13 (d) Not putting the Claimant on the First Respondent’s Attendance Management Process 13 (e) Not continuing with the First Respondent’s Attendance Management Process[192]I take these two points together. They are in essence, a repeat of adjustment (b). For substantially the same reasons, I find that the Respondent did not fail to make reasonable adjustments. 13 (f) Allowing the Claimant more time to recover form her Post-Concussion Syndrome 13 (g) Not making a decision to dismiss the Claimant from her job at the first Respondent and allowing the Claimant to continue in her job at the First Respondent[193]Again, I take these two points together. For substantially the same reasons, it would not have been a reasonable adjustment to have allowed the Claimant more time to recover from her Post-Concussion Syndrome, or not to have dismissed her. In order to have been a reasonable adjustment which flowed from the PCPs, that would have meant allowing the Claimant a significantly higher period of absence arising from long covid than the school did. For the reasons I have already set out, I have concluded that it was not reasonable to expect the Respondents to do that. So that aspect of the reasonable adjustment claim fails. Discrimination arising from disability[194]I deal with the three allegations being pursued in turn Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 37 of 69 6c) Placing the Claimant on the First Respondent’s Attendance Management Process[195]It is common ground that this happened. I consider that it must have happened on 4 May 2021, when the Claimant was given a First Stage Warning. It happened because of something arising from the Claimant’s disability, namely her increased absence due to Long Covid. But at the time that the Claimant was placed on the Attendance Management Process, the Respondent did not have knowledge that the Claimant was disabled within the meaning of the Equality Act 2010 by reason of her long covid.[196]It follows that this allegation fails. 6d) Continuing with the First Respondent’s Attendance Management Process[197]It is common ground that this also happened, in that the Claimant continued to be taken through the Attendance Management Process by being given a Stage 2 warning, and then subsequently being dismissed.[198]It was because of something arising in consequence of the Claimant’s disability, in that she was in the process because of absence which arose from her long Covid.[199]I must therefore consider whether keeping the Claimant within the process was a proportionate means of achieving a legitimate aim.[200]The aim relied upon by the Respondents was as follows: “To ensure that staff are capable of demonstrating satisfactory attendance and a good standard of attendance comprising the aims of maintaining a fair, effective and transparent sickness management regime and the efficient use of resources in order to ensure that the education for pupils is not unduly disrupted”.[201]I have no difficulty in concluding that that was a legitimate aim for the Respondents to pursue. The Respondents are public bodies, charged with using public money effectively to deliver education to pupils (while safeguarding them).[202]In terms of proportionality, for the same reasons as I have already set out in dealing with the reasonable adjustments claim, I conclude that it was proportionate for the Respondent to continue to apply its Attendance Management Process as adjusted. The Respondent could not be expected to accommodate unlimited absence. Continuing to manage the Claimant under the Attendance Management Process as adjusted set a clear framework for managing the Claimant’s absence. Doing so struck an appropriate balance between the needs of the Claimant, as an employee with a disability which would lead to increased absence levels, and the Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 38 of 69 needs of the school (and its pupils) to have a reasonably consistent level of attendance. So this allegations fails. 6e) Making a decision to dismiss the Claimant from her job at the first Respondent[203]Once again, it is common ground that this happened. Dismissal is obviously unfavourable.[204]The reason for the dismissal was ostensibly that the Claimant had met the relevant Absence Concern Levels. Of course, she would not have done so had she not had absence flowing from her disability. So I have no difficulty in concluding that the dismissal was because of something arising in consequences of her disability, namely her covid-related sickness absence.[205]I consider also that a factor in Mr Hilliard’s mind in reaching the decision to dismiss the Claimant was the adjustments she would require on account of her long covid symptoms. He referred explicitly in the dismissal letter to the fact that even following a lengthy phased return to work, the Claimant had been unable to return fully to work. That can only have been a reference to the fact that ongoing adjustments would be required. So I conclude that she was not dismissed for the Post Concussion Syndrome absence alone; the dismissal explicitly turned also on the ongoing effects of her long-covid.[206]I then turn to consider objective justification.[207]As already set out, I am satisfied that the Respondents were pursuing a legitimate aim.[208]I therefore turn to consider proportionality.[209]At the point of dismissal, the Claimant had been absent for two and a half months. That absence was unrelated to either of her disabilities. It was the result of an unfortunate accident. The medical evidence at the time of the Stage 3 hearing was that the Claimant would recover from that injury shortly.[210]The Claimant had also had a total of 168.8 days sickness absence prior to that, across her fifteen years of employment with the school.[211]The figure Mr Hillier used in his witness statement for lost teaching time was the figure from 2019 to 2023. During that period, his evidence was that the Claimant lost 240 teaching days. But of course, a significant portion of that came in the five months between the decision to dismiss her in November 2022, and the end of her notice period on 31 April 2023. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 39 of 69[212]It is relevant in my judgment that the school had failed to follow its own policy, in two significant ways. The first was by failing to discuss the Occupational Health report with the Claimant prior to a decision being taken to convene the Stage 3 hearing. The policy required not merely that the Occupational Health report be discussed before the Stage 3 hearing took place, but that it be discussed before a decision was even be taken to proceed to Stage 3. The school had a detailed and no doubt carefully drafted policy. Departing from it in a way which (essentially) short-cut the process, in and of itself, gave rise to the inference that the school was actively looking to bring the Claimant’s employment to an end as expediently as possible. But the failure was more than a mere procedural one. By failing to meet the Claimant to discuss the Occupational Health advice (and by extension the Occupational Therapist advice) before deciding whether to convene a Stage 3 hearing, the Claimant was denied the opportunity to discuss the adjustments being sought. Given that concern about the adjustments required explicitly formed part of Mr Hillier’s decision, a discussion about those adjustments would have been a particularly important procedural step.[213]Arranging a meeting to discuss the Occupational Health report would not have unduly delayed the progress through the school’s process. At the point that the decision was taken to invite the Claimant to a Stage 3 hearing, the prevailing medical advice, from both the extant Fit note and from Occupational Health, was that the Claimant would be fit return to work from her post-concussion syndrome imminently. There was no suggestion that the Claimant would be unfit even to attend a meeting for a lengthy period of time, such that waiting until a meeting about the Occupational Health advice could be held would have introduced a significant delay. And the Respondents did not, for example, ask Occupational Health for advice on when the Claimant would be fit to attend a meeting. They apparently simply decided to forgo that stage in the policy.[214]The second significant departure from the policy came in the way that Mr Baker referred to the policy framework. Within his report, he explicitly referenced the factors in paragraph 17.2 and Appendix 8 of the policy. Those factors were relevant to the question of whether to invite to an absence review meeting. He also explicitly referred to the presumption within the policy that a warning would be given unless there was a reason not to, based on one of those factors. But the policy did not refer to those factors as being relevant when considering dismissal, and more importantly it did not contain a presumption in favour of dismissal once a Stage 3 hearing was convened. Within his outcome letter, Mr Hillier said this “I agree with Mr Baker’s assertions relating to consideration being given to a final written warning or dismissal have not been met”, before going on to refer to each of the factors in paragraph 17.2 of the policy. Although the sentence is somewhat confused, in the context I can only read it as meaning that Mr Hillier had taken the same approach that dismissal would be the starting point unless one of the factors in the policy pointed to the contrary. But that Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 40 of 69 was not how the policy worked at stage 3. By referring to the policy in that way, it appeared that both Mr Baker and Mr Hillier approached the issue on the basis that the default outcome would be dismissal unless Mr Hillier could be satisfied that there was a good reason not to dismiss.[215]Within his outcome letter, Mr Hillier indicated that the evidence from Occupational Health was that the Claimant would be unlikely to be able to teach a full timetable within the next year without considerable adjustments. There was no timescale put on the adjustments in the Occupational Health advice of October 2022. The only reference to a 12 month period in that year was in the section of the letter dealing with whether the Claimant’s condition was likely to be covered by the Equality Act 2010. Mr Hillier appeared to have conflated that with a timescale for the adjustments being recommended. The Occupational Therapist report from August 2022 had referred to adjustments for the coming academic year; but expressly on the basis that those would need to be discussed with the Claimant. I do not read that report as saying that all of those adjustments would necessarily need to last for the whole academic year. Once again, had the Respondent followed its own policy and discussed the Occupational Health report with the Claimant before deciding whether to convene a Stage 3 hearing, that issue would have been explored.[216]There was no evidence before me of the financial cost to the school of the adjustments that were being sought. Mr Hillier’s evidence was that he was aware of the costings when he made the decision that he did. I accept he would have had a broad idea of the cost of covering the Claimant – he is the Headteacher with ultimate responsibility for the school’s budget. But of course I am not merely assessing the Respondent’s assessment of the proportionality of dismissing the Claimant. I must conduct my own assessment. And there was no evidence adduced before me regarding the financial cost to the school of making some or all of the adjustments sought.[217]Mr Baker suggested in oral evidence that a reduction in the Claimant’s timetable could only have been accommodated with a decrease in contracted hours and responsibility, and that that would have required the Claimant to submit a flexible working request. It would be surprising if the Claimant needed to jump through the procedural hoop of making a flexible working request in order to have the school consider making a reasonable adjustment for her. It would be even more troubling if no one had told the Claimant that that was what she needed to do if she wanted the school to consider making the adjustments recommended by the Occupational Therapist (and endorsed by their own Occupational Health provider). That may have been what would have been discussed if there had been a meeting to discuss the Occupational Health report before the decision was taken to convene a Stage 3 hearing. But again, in contravention of the Respondent’s own policy, that meeting never took place. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 41 of 69[218]I bear in mind also that the course of the Claimant’s absence after the Stage 3 meeting took place is not necessarily a reliable guide to what would have happened if a Stage 3 meeting had not been convened, and if she had not been dismissed. That is because: 218.1. Her fit notes up to the start of November had been for post-concussion syndrome only. The fit note from 21 November 2022 referred, for the first time, to stress and long covid symptoms. The Claimant’s evidence, which I have no difficulty accepting, is that she found the Stage 3 process very stressful. At a time when she was absent from work following a significant head injury, she was invited to a meeting at which she was told that her employment may be terminated, and sent a pack of well over 100 pages of documents to be referred to at that meeting. 218.2. It was a common thread through the medical evidence that doing too much too quickly would worsen the Claimant’s long covid. It would be impossible, without the benefit of medical evidence, to hypothesise about how the Claimant’s recovery and her fitness for work was affected by being required to attend a Stage 3 hearing, and then subsequently being dismissed.[219]In terms of proportionality, I therefore base my analysis on the position as it was when the Stage 3 hearing took place – namely, that based on the Occupational Health advice she ought to have been well enough to return to work around two weeks previously, and her fit note was due to expire that day (albeit that she did indicate in the meeting that she was not immediately fit to return, and she tendered a further fit note the next day).[220]Of course, even without specific evidence regarding financial cost, I bear in mind that the Claimant’s absence would inevitably have had an effect on her colleagues, and on pupils at the school. This was happening in a context where the Respondents’ budget was under considerable pressure. It is also significant that the need for consistent teaching presence, both for safeguarding/pastoral reasons and for education reasons in the core subject of English, was heightened by the fact the world was emerging from a devastating pandemic during which pupils’ education had been significantly disrupted. The school was also having to make adjustments for another teacher within the same department who was suffering from long covid, putting a further strain on their resources.[221]Weighing all of that up, in my judgment it was not proportionate to dismiss the Claimant, given that: 221.1. The evidence at the time suggested she would be fit to return to work reasonably imminently from the post-concussion syndrome; and Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 42 of 69 221.2. The adjustments recommended in respect of her long covid had not been properly explored with her (in breach of the school’s own policy).[222]It follows that the complaint of discrimination arising from disability in respect of the Claimant’s dismissal is well founded and succeeds.[223]That is the only complaint within claim 1 that I have found to be well-founded. It is prima facie in time, so I do not need to consider jurisdiction.. Claim 2 Reasonable adjustments[224]The reasonable adjustments complaint within claim 2 follows the same format as claim 1, but adds four additional adjustments. In substance, they are the same allegation four times – namely, dismissing the Claimant (or allowing the dismissal to stand or failing to overturn it).[225]I have already dealt with the substance of that allegation as a complaint of failure to make reasonable adjustments. Each of the allegations fails, for the reasons I have already explained. Discrimination arising from disability[226]Once again, in substance this merely repeats the same allegation regarding the Claimant’s dismissal (twice). I have found that it succeeds as an allegation of discrimination arising from disability. It follows that the allegations of discrimination arising from disability in claim 2 therefore succeed, for the same reasons already articulated; but they add nothing to the substance of the part claim 1 which has already succeeded. Unfair dismissal[227]I am satisfied first that the reason Mr Hillier decided to dismiss the Claimant was because he had formed the view that she was incapable of carrying out her role. I am satisfied that that was his genuine belief, based on the evidence available to him. Capability is a fair reason for dismissal.[228]In respect of the question of fairness, using the questions in the list of issues as a structure: 228.1. For the reasons I have set out above, I consider that the Respondent did not adequately consult with the Claimant. A significant part of the reason that Mr Hillier reached the decision he did was not because of the immediate absence (by reason of post-concussion syndrome), but rather because of the previous absences due to long covid and the adjustments recommended by the Occupational Therapist and by Occupational Health. But the Respondent did not consult with the Claimant regarding those Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 43 of 69 adjustments or the advice from O ccupational Health – despite their own policy requiring them to do so. 228.2. Nor do I consider that, in the circumstances, the investigation carried out was reasonable, in two critical respects: 228.2.1. The prevailing medical advice in respect of the post-concussion syndrome was that a return to work was imminent. If Mr Hillier was concerned that the Claimant had not returned within the timescale outlined by Occupational Health, he could have sought further updating advice. 228.2.2. More importantly, Mr Hillier had formed the view that the requirement for “significant” adjustments to the Claimant’s role in respect of the long covid, to use his wording, would last for at least a year. The advice was not quite as clear-cut as that about prognosis. And the position may have changed following the Claimant’s head injury. So again, the position had not been reasonably investigated. 228.3. The Respondent could have waited longer before dismissing the Claimant in respect of her absence at that time. Her return was, it appeared, imminent.[229]I have, of course, found that the dismissal was discriminatory. That is a powerful (although not determinative) factor when considering the fairness of the dismissal.[230]In all of the circumstances, I therefore conclude that dismissal was not within the range of reasonable responses.[231]I also conclude that the dismissal was procedural unfair. Where an employer has set out a clear, detailed and unambiguous policy, they ought not to depart from that policy without good reason – at least, not to the employee’s detriment. But that is exactly what the Respondent did, in that: 231.1.1. Mr Baker failed to hold a meeting with Claimant to discuss the Occupational Health advice before deciding to convene a Stage 3 hearing; and 231.1.2. Mr Hillier fettered his own discretion by taking into account the wrong factors in the policy, and by appearing to approach the question of dismissal on the erroneous basis that Claimant should be dismissed unless one of those factors applied.[232]Of course, there was much about the process that the school followed which was fair. The Claimant was invited to meetings in writing. She was given the right to be accompanied at those meetings. She was given the right of appeal at every stage. She was warned at Stage 2 that dismissal may be a possible outcome. Occupational Health advice was sought at various stages. But tor the reasons I have already outlined, the Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 44 of 69 departures from the policy at Stage 3 were not merely technical. They went to the heart of the fairness of the process.[233]It follows then that I conclude that the dismissal was unfair. Polkey/Chagger[234]I must then turn to consider the possibility that the Claimant would have been fairly dismissed in any event. In that regard: 234.1. The Claimant’s last fit note expired on 20 January 2023. That was less than two months after her dismissal. 234.2. The Occupational Health advice of 3 January 2023 implied that the Claimant had recovered from her head injury. It also noted that she would be unable to manage teaching duties full-time, but would have returned to work following her head injury but for her dismissal. 234.3. As already set out, I also cannot look past the fact that the Claimant’s recovery may have been impeded by the requirement to attend a Stage 3 hearing, and then her dismissal following that hearing. 234.4. The Claimant was certainly well enough by February 2023 to start actively looking for other work; she secured a job to start in May 2023, effectively immediately after her dismissal took effect.[235]If the school had acted fairly, they would have set up a meeting with the Claimant when she was able to attend in November 2022 to discuss the Occupational Health and Occupational Therapist advice. Such a meeting may well have led to further advice being sought from Occupational Health regarding the detail of the adjustments, and the timescales over which they may have been required. If the Claimant was still not well enough to return to work as a result of her head injury, the school would also have sought further advice regarding that. On the basis of 3 January 2023 Occupational Health advice, the Claimant had recovered from the head injury by then, so it would have been assumed that the Claimant would have resumed work (albeit probably on a phased basis).[236]In that scenario, even bearing in mind the length of the Claimant’s sickness absence, the considerable (and commendable) efforts that the school had made previously in respect of the phased return to work, and the necessarily rough and ready approach to be taken in a Polkey/Chagger assessment, I cannot say with any confidence that the school would have reached a point where they would have taken the decision to dismiss the Claimant (and done so fairly).[237]I therefore do not make any Polkey/Chagger deduction. Application to depart from the Schedule of Loss Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 45 of 69[238]I delivered my oral judgment on liability on the fifth day of the hearing. I told the parties that I would hear evidence and submissions on remedy on day 6 of the hearing. Over the weekend, Mr O’Keeffe sent the Respondents and the Tribunal a position statement, alone with a bundle of 46 pages of documents not contained in the trial bundle. That position statement departed from the Claimant’s Schedule of Loss in two significant ways:a. By claiming for future loss of earnings beyond the final hearing date (which the Schedule of Loss did not do); andb. By claiming for pension loss, calculated on the substantial loss basis (on the basis that the Claimant was a member of a defined benefit scheme while employed by the Respondents, and in her new employment she was employed instead on a defined contribution scheme).[239]I treated the position statement as an application to depart from the Schedule of Loss, and to adduce the further documentary evidence. I heard submission from Mr O’Keeffe and Mr Hitchens.[240]The starting point in respect of the application was rule 6 of the Employment Tribunal Rules of Procedure (as they were in force at the relevant time). Rule 6 dealt with irregularities and non-compliance. It provided that, in cases of non-compliance, the ET may: 240.1. Waive or vary the requirement 240.2. Strike out the claim or response in whole or in part 240.3. Bar or restrict a party’s participation in the proceedings; and 240.4. Award costs in accordance with rules 74 and 84.[241]Rule 6 must be applied in line with the overriding objective contained in Rule 2 (at the relevant time), which is to deal with cases fairly and justly.

Background

[242]Case Management Orders were made by Employment Judge D Wright at a preliminary hearing on 10 October 2023. He directed the Claimant to produce a schedule of loss, by 31 October 2023. His order described the Schedule of Loss as “a document setting out how much compensation for lost earnings or other losses they are claiming and how the amount has been calculated”.[243]Thereafter, the parties were directed to disclose documents by list on 28 November 2023, with provision made for copy documents to be provided on request.[244]The case was listed for a 7 day final hearing, to deal with liability and remedy. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 46 of 69[245]The Claimant produced a Schedule of Loss dated 31 October 2023. Within that, the Claimant claimed:a. A basic awardb. Loss of earnings from the date of dismissal to the final day of the final hearing (accounting for earnings received in that period)c. Loss of Respondent’s employer pension contributions during the same period (calculated on the simplified basis).d. Loss of statutory rightse. Injury to feelings (plus interest)f. The schedule then grossed up the total figure. The figure claimed, including grossing up, was £66,989.63.[246]Within the Claimant’s witness statement, her evidence was that she (in essence) made a conscious choice not to return to teaching, as she could no longer countenance another teaching post due to the way her trust with the school had been broken.[247]The combined effect of the changes in Mr O’Keeffe’s written submissions was to bring the value of the losses being claimed added up to something in the region of £130,000 (based on a very rough pension calculation).[248]Mr O’Keeffe submitted that there was no real prejudice to Respondents in the change. Mr Hitchens submitted that there was real prejudice in that had they known that the Claimant was claiming ongoing losses past the end of the period in the Schedule of Loss (and substantial pension loss), they would have called evidence regarding the availability of teaching work. The Respondents had not called any such evidence.[249]I gave Mr Hitchens some time to take instructions on whether that evidence could be collated by day 7 of the hearing. Mr Hitchens explained that it could not, as it would have to be gathered from the schools in the local area, and Respondents’ solicitor (unsurprisingly) had other professional commitments.[250]Mr O’Keeffe then explained that it was conceded on behalf of the Claimant that there was no dispute that if she had returned to the teaching profession, she would have matched her pre-dismissal earnings by 17 December 2024 (the final day of the hearing). The sole issue regarding teaching employment was therefore effectively whether the Claimant had acted reasonably by seeking a career outside teaching rather than seeking to mitigate her losses within the teaching profession. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 47 of 69[251]In terms of the change in position regarding the losses being claimed, my starting point was that I did not consider that it was an amendment. A Schedule of Loss is not a pleading. It does not require formal permission from the Tribunal to amend. If it did, that would lead to anomalous situations where, for example, a Claimant who had successfully mitigated their loss after production of the Schedule would require permission to amend it to reflect that. The Schedule did not give rise to separate heads of claim; and the statutory provisions dealing with compensation for discrimination claims and the compensatory award for unfair dismissal claims are broadly drafted.[252]I therefore considered that the correct framework through which I must look at the change in the Claimant’s position was Rule 6. That was because she had been ordered to produce a schedule of loss, and the schedule she had produced did not comply with the relevant Order (in that it did not set out all of the losses she was claiming).[253]In terms of the options available to me under Rule 6, the option that was suggested to me by Mr Hitchens was, impliedly, that the part of Claimant’s claim where she claimed future loses and pension loss should be struck out. Mr Hitchens made the point that viewing it through the lens of Rule 6 meant that the burden was on the Respondents to show that the relevant part of the claim should be struck out, whereas if I were treating it as an application to amend, the burden would be on the Claimant to show that she should be permitted to amend her claim. In considering the application, I was careful to avoid starting from the position that there was a “burden” on either party; rather, I focused on what was in the interests of justice, and where the balance of prejudice lay as between the parties.[254]It was surprising that the Claimant’s solicitors had not picked up on the point. Mr O’Keeffe indicated, very frankly, that the Claimant was not aware of the difference between a defined benefit and a defined contribution scheme. That is all very well. But the Claimant was legally represented throughout the proceedings, by her Trade Union. It was surprising, to put it mildly, that her legal team would not have appreciated that the Teachers’ Pension Scheme was a defined benefit scheme, and have appreciated the potential ramifications of that. Having said that, it is also surprising that the issue was apparently not flagged as a potential one at the initial preliminary hearing by Respondents’ solicitor. At that point, no schedule of loss had been prepared so the Respondents could not have assumed that the Claimant would be limiting her losses in the way that her subsequent Schedule of Loss suggested.[255]In my judgment, given the Claimant’s concession that she could have fully mitigated her loss by the hearing date by returning to the teaching profession, there was no real prejudice to the Respondents in the Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 48 of 69 Claimant’s change of position . They were facing a claim that was potentially worth more than had been set out on the schedule; but that is true of very many cases. Many Schedules of Loss omit matters such as interest and grossing up. An injury to feelings is also ultimately a matter for the Tribunal, and a Tribunal may very well make an award higher than that set out on a Claimant’s Schedule of Loss. So the fact that the final award made to a Claimant may be more than the figure on the Schedule of Loss does not, in my judgment, amount on its own to a significant prejudice to a Respondent. If Claimants were capped at the amount they had set out on the Schedule of Loss, the effect would be to encourage Claimants to over-inflate schedules, which would not assist parties or the Tribunal.[256]There was no real possibility that the parties would have been expected to obtain expert pension evidence before the listed final hearing. Any substantial pension loss calculation would always have been a matter for another day.[257]In terms of losses up to the hearing date, I concluded that there was nothing substantive in dispute that was not already in dispute prior to the Claimant’s change of position. The burden of showing a failure to mitigate rested on the Respondents. So it was always up to the Respondents to adduce evidence of failure to mitigate in the period up to the hearing date, and they had elected not to do so.[258]In terms of the time after the date of the hearing, the question for the Tribunal would be whether the Claimant had unreasonably failed to mitigate her loss by forsaking the possibility of a return to teaching. That was not a matter on which it seemed to me the Respondents could sensibly call evidence. It was matter on which they would want to cross-examine the Claimant, in light of the Tribunal’s findings regarding liability, but they would have the opportunity to do that.[259]The prejudice to the Claimant if she was not permitted to seek the losses being claimed is that there was a potential she would not be compensated in the way that the law allowed, for a discriminatory tort committed by the Respondent. That was a potentially significant prejudice.[260]So I concluded that the balance of prejudice rested very much more heavily on Claimant than on the Respondents, given the Claimant’s concession regarding the availability of teaching work which would have fully mitigated her losses.[261]I therefore allowed the Claimant to rely on the remedy position put forward in Mr O’Keeffe’s written submissions. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 49 of 69[262]In respect of the documents, I allowed them to be adduced. Some of the documents dealt with a promotion which post-dated the Schedule of Loss and which consequently increased the sums by which the Claimant’s loss would be mitigated in the period prior to the hearing, so it was entirely appropriate that they be put before the Tribunal (albeit that their disclosure was very late). The remaining documents dealt with a limited number of applications by the Claimant for other roles in an effort to mitigate her losses. It was surprising that they were not adduced earlier; but the Respondent was professionally represented and was consequently well able to challenge the Claimant’s evidence on the point should they wish to do so. There was no significant prejudice to the Respondent. Remedy - process[263]I indicated that I would start by reaching conclusions on everything except pension loss. Once I had delivered my conclusions on all of the other heads of remedy, I would then hear further submissions on how the parties say I ought to deal with pension loss.[264]I heard evidence on remedy from the Claimant and from Mr Hillier, each of whom was cross-examined on the evidence they gave. I then heard submission from Mr Hitchens and Mr O’Keeffe (supplemented by Mr O’Keeffe’s written submissions). Factual findings (remedy)[265]I do not repeat the factual findings I had already made in dealing with liability. I made the following further findings regarding remedy.[266]It was common ground that: 266.1. The Claimant could have fully mitigated her losses by finding another teaching job by the final day of the hearing. 266.2. The Claimant’s gross weekly pay pre-dismissal was £718.49, and her net weekly pay was £516.52. 266.3. The Claimant’s basic award, bearing in mind the statutory cap on a week’s pay, was consequently £13,181.50. 266.4. The Claimant was a member of the Teachers’ Pension Scheme, a defined benefit scheme, while in employment with the Respondents.[267]I did not understand it to be in dispute that, had the Claimant remained in employment with the Respondents: 267.1. With effect from 1 September 2023, she would have received a 6.5% pay rise, meaning her net pay would have increased to £618.63 per week. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 50 of 69 267.2. With effect from 1 September 2024, she would have received a further 5.5% pay rise, meaning that her net pay would have increased to £648.96 per week.[268]After the Claimant’s dismissal took effect on 31 April 2023, she started a new job with the University of Sussex as an Undergraduate Admissions Coordinator. Her employment started on 2 May 2023. She was employed full time (36.5 hours per week), and her net weekly earnings were £409.29.[269]With effect from 15 July 2024 the Claimant was promoted to the role of Senior Undergraduate Admissions Coordinator, in which role her net earnings increased to £507.94 per week.[270]In her employment with the University of Sussex, the Claimant is a member of a defined contribution pension scheme, to which both she and her employer contribute.[271]The Claimant has applied for other, better paid roles within the same area of work. Her position was that she anticipated having mitigated her loss of earnings in full by 1 April 2030.[272]The Claimant’s evidence in her witness statement was that: 272.1. The decision to dismiss her had a profound effect on her mental and emotional state, and she became distressed and suffered a relapse in Long Covid symptoms. 272.2. She viewed teaching as a vocation given her background (as the first person in her family to go to University, and coming from a single-parent family from an area of deprivation). 272.3. She lived close to the school, and her children were pupils there. She felt ashamed by her dismissal and felt, at times, unable to leave the house. 272.4. The Claimant’s trust in the school was so dramatically broken that she could no longer countenance another teaching post. 272.5. She found it hard to imagine teaching in another school, especially after the difficult experience she had had in the months preceding her dismissal.[273]The Claimant’s evidence in cross-examination introduced a different reason for not returning to teaching. Her oral evidence was initially that the reason she did not seek other teaching work was that the role she had taken on, where she could work on a hybrid and flexible basis, supported her recovery in a way that a teaching role would not. When pressed on the point, her evidence was that the predominant reason she could not go back to work in a school was because of the upset she had suffered in the way she was treated by the Respondents, but that she also considered that she would not have been able to return to teaching straight away because of the Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 51 of 69 impact of her long covid. She was not able to say, however, when she considered she would have been well enough to have returned to the teaching profession. She did suggest six months after her dismissal, although she also resiled from that to a degree. There was (unsurprisingly) no medical evidence before me regarding the point.[274]The Claimant’s evidence was also that she might have found it difficult to find a role as an English teacher because she was at the top of the pay scale, which made her relatively expensive to employ. Her evidence was also that jobs do not often come up in the middle of the academic year.[275]The Claimant also accepted in evidence that her dismissal was essentially one lapse by the Respondent in what had otherwise been a good working relationship across many years, albeit that the lapse was a very significant one.[276]The Claimant appealed her dismissal. She then withdrew her appeal. Her evidence regarding why she withdrew the appeal was somewhat confused. The contemporaneous documents suggested that it was because she no longer wished to be reinstated to her role with the school. In evidence she suggested that it was because she had been advised by her Union representative that her appeal had little prospect of success, because the Governors (who would hear her appeal) were unlikely to overturn the Headteacher’s decision.[277]The Claimant’s evidence was that had she remained in teaching, she would have retired between the ages of 60 and 65, but as close to 65 as possible. She also referred to working up to her retirement age under the pension scheme. Her evidence was that her pension was particularly important to her.[278]Mr Hillier’s evidence was that since January 2022 the First Respondent school has advertised 11 vacancies for English teachers. His evidence was that they received 55 applications in total, so approximately 5 per vacancy on average. His evidence was that there are 9 secondary schools in Brighton and Hove. His evidence was also that English is a shortage subject, which means it is difficult to recruit qualified English teachers. Law (remedy) Equality Act 2010[279]Section124 of the Equality Act 2010 provides that where a claimant succeeds in a complaint of discrimination, the Tribunal may order a declaration, compensation, and a recommendation. Those are not mutually exclusive. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 52 of 69[280]Section 119(2) provides that the county court (and by virtue of s.124(6), the Tribunal) has the power to grant any remedy which could be granted by the High Court in proceedings in tort or on a claim for judicial review. That expressly allows the Tribunal to award damages on the normal tortious principles.[281]Section 119(4) provides that an award of damages may include compensation for injured feelings, whether or not there is compensation on any other basis.[282]An injury to feelings award is not automatic (Ministry of Defence v Sullivan [1994] ICR 193). Some evidence is required, although not medical evidence.[283]The EAT in the case of Prison Service and ors v Johnson [1997] ICR 275 summarised the general principles regarding awards for injury to feelings as follows:• awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party• an award should not be inflated by feelings of indignation at the guilty party’s conduct• awards should not be so low as to diminish respect for the policy of the discrimination legislation. On the other hand, awards should not be so excessive that they might be regarded as untaxed riches• awards should be broadly similar to the range of awards in personal injury cases• tribunals should bear in mind the value in everyday life of the sum they are contemplating, and• tribunals should bear in mind the need for public respect for the level of the awards made.[284]The Court of Appeal gave specific guidance in the case of Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 that awards for injury feelings should fall into three broad bands: a top band of between £15,000-25,000: to be applied only in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. Only in very exceptional cases should an award of compensation for injury to feelings exceed £25,000 a middle band of between £5,000-15,000: for serious cases that do not merit an award in the highest band, and a lower band of between £500-5,000: appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. The Court said that, in general, awards of less than Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 53 of 69 £500 should be avoided, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.[285]Since 2017, Presidential Guidance has been issued by the Presidents of the ET in England and Wales and Scotland uprating the Vento bands. The Sixth Addendum, which was in force for claims issued after 6 April 2023, set out the relevant bands as follows: Lower band: £1,100 - £11,200 Middle band: £11,200 - £33,700 Upper band: £33,700 - £56,200[286]The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 give the Tribunal the power to award interest on awards made in discrimination cases. Regulation 2(1) provides that the Tribunal must consider whether to award interest even if the claimant does not specifically apply for it.[287]The rate of interest is set by reference to section 17 of the Judgments Act 1838 – currently that is eight percent.[288]Regulation 6(1)(a) provides that in respect of an injury to feelings, the period of the award of interest starts on the date of the act of discrimination complained of, and ends on the calculation day.[289]Regulation 6(1)(b) provides that for all other awards, interest is awarded for the period beginning on the mid-point date, which is the date half way between the date of the unlawful discrimination and the calculation date.[290]Regulation 6(3) provides that the Tribunal has discretion to calculate interest based on different periods where there would be “serious injustice” if different dates were not used. Unfair dismissal[291]A claimant who succeeds in a claim of unfair dismissal is entitled to a basic award calculated in accordance with section 119 of the Employment Rights Act 1996. A week’s pay is calculated in accordance with the provisions in sections 221-224 of the same 1996.[292]The compensatory award for unfair dismissal is calculated in accordance with section 123 of the 1996 Act. That provides that the Tribunal must award the compensation it considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 54 of 69[293]Claimants are under an express duty to mitigate their losses (section123(4)).[294]In considering mitigation, the Tribunal should ask itself: 294.1. What steps were reasonable for the claimant to have to take in order to mitigate his or her loss; 294.2. Whether the claimant did take reasonable steps to mitigate loss; and 294.3. To what extent, if any, the claimant would have actually mitigates his or her loss of he or she had taken those steps (Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498).[295]The burden of showing a failure to mitigate is on the Respondent.[296]In Cooper Contracting Ltd v Lindsey [2016] ICR D3, Langstaff P (as he was then) noted that the relevant test can be summarised by saying that it is for the wrongdoer to show that the claimant has acted unreasonably in failing to mitigate. In a case where it might have been reasonable for a claimant to have taken a better paid job, that does not necessarily satisfy the test. It is important evidence that might assist the Tribunal to conclude that the employee acted unreasonably.[297]Broadly the same principles regarding mitigation apply to compensation for loss of earnings in discrimination claims.[298]The Tribunal may also make an award to compensate the employee for the loss of the statutory employment rights which are based on length of service. ACAS Code of Practice[299]Section 207A of the TULRCA 1992 provides that, in proceedings in the jurisdictions set out in Schedule A2 of that Act, where it appears to the Tribunal that: 299.1. The claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies; 299.2. The employee has failed to comply with that Code in relation to that matter; and 299.3. The failure was unreasonable; the Tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award It makes to the employee by no more than 25%.[300]The reference to a Code is to a Code of Practice issued under that Chapter of the Act. The relevant schedule includes claims of unfair dismissal and claims for breach of the Equality Act 2010 Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 55 of 69[301]The relevant Code of Practice relied upon is the Code of Practice on Disciplinary and Grievance Procedures. In the case of Holmes v Qinetiq Ltd [2016] ICR 1016, the EAT held that a “disciplinary” situation was one in which an employee faces a complaint or allegation that might lead to disciplinary action, and such action ought only to be invoked where there was culpable conduct or performance alleged. Conclusions (Remedy) Basic award[302]The basic award is agreed to be £13,181.50 Loss of statutory rights[303]The Claimant had 15 years’ service at the point of dismissal. Upon her dismissal she lost all of the statutory service-based rights she had at the point of dismissal. Indeed, she has not yet recovered them all. In the circumstances, I consider that the appropriate figure to award for loss of statutory rights is £350. Reasonableness of mitigation[304]I deal next with the overarching point about the reasonableness of the steps taken by the Claimant to mitigate her loss.[305]The Claimant has elected to make a career outside the teaching profession. Her position, advanced on her behalf by Mr O’Keeffe, is that it will take her some 7 years to reach a point where she has mitigated her loss of income. That is necessarily speculative. She will not match her pre-dismissal income in her current role. She has already been promoted once since starting her new career. To mitigate her pre-dismissal earnings would require her to be promoted on at least one more occasion. So it is not merely a case of advancing up a determined pay-spine – it is subject to the vagaries of what promotion opportunities arise, and if she is successful in applying and interviewing for them. She has interviewed unsuccessfully for promoted roles; she explained in evidence she has another interview coming up.[306]But of course the immediate loss of income is only one factor. She has also, by changing careers to work in the University sector, taken herself from a career where she would inevitably be a member of a generous defined benefit pension scheme, to a career where she would be a member of a much less generous defined contribution scheme. That is highlighted by the indicative, rough and ready calculation performed by Mr O’Keeffe (without the benefit of expert evidence), which showed pension loss in the order of around £63,000. I do bear in mind, of course, that that is very much a ballpark figure; but it gives some idea of the potential value of the lost pension; and it is loss that the Claimant now claims within these proceedings. The Claimant’s own evidence was that her pension was important to her. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 56 of 69[307]The Claimant accepts that, had she chosen to mitigate her losses by returning to teaching, she would have been fully mitigated by the final day of the final hearing. So even on her own case regarding how quickly she might mitigate her loss in the alternative career path she has chosen: 307.1. It will take her over 5 years from now to mitigate her lost earnings; and 307.2. Even at that point, she will still have lost out, in terms of her pension, to the tune of many tens of thousands of pounds.[308]I have carefully considered the Claimant’s evidence regarding her reasons for not returning to the teaching profession. Her oral evidence did depart to a degree from the evidence in her witness statement, although she clarified that the predominant reason she felt unable to return to teaching was her upset at the way she had been treated by the Respondents.[309]I must, of course, bear in mind that the Claimant referred in her witness statement to the difficult time she had in the months preceding her dismissal as being a factor in why she struggled to imagine herself returning to teaching. I have found that the only act of discrimination was the dismissal itself. The claims of failure to make reasonable adjustments did not succeed. So I must be careful only to compensate the Claimant for losses that flow from the unfair dismissal and from the acts of discrimination, not from any hurt or upset caused by her unhappiness at the way she was treated by the school prior to that. When I am considering whether she has mitigated her loss, I must look at the loss caused to her by the Respondent’s discrimination and unfair dismissal, and whether she has failed to take reasonable steps to mitigate that loss.[310]I must bear in mind also that the burden is on the Respondent to show, not merely that it would have been reasonable for the Claimant to have returned to teaching, but that it was unreasonable for her not to do so.[311]Notably, while the Claimant referred to the (understandable) upset caused to her in being dismissed by the school that her own children attended, she did not suggest in her evidence that there was any specific reason to think that, for example, other schools in Brighton and Hove would be hostile to her because of her dismissal by the school. This was not a case where the Claimant’s dismissal had any particular stigma attached to it; she was not a whistleblower, nor was she dismissed for disciplinary reasons. And the Claimant herself accepted that she had been well supported by the school for a large part of her employment.[312]Weighing all of that up, I conclude that the Claimant did act unreasonably by choosing not to return to the teaching profession. In saying that, I am of course not making an objective value judgment about the Claimant’s own life choices. They are a matter for her. But to the extent that Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 57 of 69 she claims her loss of earnings and pension as flowing from the Respondents’ wrongdoing, she must take reasonable steps to mitigate those losses. And I cannot look beyond the fact that she has turned down the opportunity to entirely mitigate her financial losses. The way the school treated the Claimant by dismissing her (and the process that led to her dismissal), the understandable hurt and upset it has caused her, and the risk she felt she would be at if she returned to teaching at another school with her disabilities, do not in my judgment make it reasonable for her to have turned down that opportunity to mitigate.[313]I then turn to consider first past loss of earnings Past loss[314]I have carefully considered Mr Hillier’s evidence. I accept that English teaching is (effectively) a shortage occupation. I accept also that the school has recruited 11 English teachers since January 2022 (although of course at least three of them were recruited while the Claimant was still employed).[315]The important factor is this, however. The position in respect of past lost has not changed substantively from what the Claimant had set out in her Schedule of Loss. The Respondent bears the burden of showing that the Claimant un reasonably failed to mitigate her loss. The Respondent has adduced no evidence of jobs the Claimant could have applied for at any of the other secondary schools in Brighton within the period from her dismissal taking effect to the final hearing.[316]The Claimant was on UPS3, the highest point in the teaching pay scale. She was also on a TLR. Her evidence was that she would still have wanted to work four days per week if teaching.[317]The Claimant’s own evidence was that most jobs start at the start of the academic year. That is consistent with the evidence I heard regarding the way the school’s timetable is created. That is not to say that all teaching jobs start in September; there was evidence before me that teachers had started working at the school at the start of the summer term. But on the evidence before me I accept that most teaching jobs start at the start of a term, and most of those are at the start of the Autumn term (and consequently the academic year). The Claimant’s concession was that she would have mitigated her loss by the last day of the trial. I consider it is inherent in that concession that to have mitigated her loss by the last day of the trial, the overwhelming likelihood is that that would have been by taking up a job that started no later than the start of the new term, on 1 September 2024.[318]In extrapolating from the Claimant’s concession regarding full mitigation by the date of the hearing, I am conscious I am adopting a Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 58 of 69 somewhat rough and ready approach. But I consider that it is appropriate to do so given: 318.1. The Claimant’s own evidence that jobs normally start at the start of the academic year; and 318.2. The possibility that mitigation might have been staged, in that she may very well have achieved a teaching role (at UPS3) more quickly than she would have achieved a TLR award (and of course the Claimant’s concession was that she would have fully mitigated her loss including the TLR award by the final day of the hearing).[319]Beyond some generalities about the number of schools in Brighton and Hove, the number of posts recruited for by the First Respondent school, and the school’s general willingness to consider part time applicants, there is no real evidence before me of roles the Claimant could have applied for to start prior to that which would have mitigated her loss.[320]The Respondents therefore have not discharged the burden of showing that the Claimant unreasonably failed to mitigate her loss prior to 31 August 2024. I do of course also bear in mind that the Claimant did take up other work immediately after her dismissal, at a time when her own evidence was somewhat ambivalent about whether she would even have been able to start a teaching role given the progress of her long covid symptoms.[321]So I find that: 321.1. The Claimant did not unreasonably fail to mitigate her loss prior to 31 August 2024, and she recovers the past loss as claimed to that point 321.2. The Claimant could have mitigated her pre-dismissal loss by taking up employment as a teacher of English on UPS3 with a TLR with effect from 1 September 2024. Given that I have found that she acted unreasonably by not taking up such work, it follows that I do not award any losses beyond that date.[322]It follows from that that the Claimant’s loss of earnings was £36,817.44: 322.1. From 1 May 2023 to 30 August 2023, £4,648.68 322.2. From 1 September 2023 to 30 August 2024, £32,168.76.[323]Her mitigation during the same period was £28,832.91: 323.1. 63 weeks (2 May 2023 to 14 July 2024) at £409.29 = £25,785.27 323.2. 6 weeks (15 July 2024 to 31 August 2024) at £507.94 = £3,047.64[324]That gives a net loss of earnings of £7,984.53 Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 59 of 69 Future loss of earnings[325]It follows from the above that I make no award for future loss of earnings. Injury to feelings[326]It is in my judgment relevant that: 326.1. The Claimant was dismissed discriminatorily 326.2. Teaching was a vocation to the Claimant. She struggled with the idea of returning to the teaching profession, as a result of the way she perceived she was treated by the school (of which her dismissal was a significant part). 326.3. The Claimant felt a strong connection to her role and to the school, which was also the school at which her partner had worked (although he had taken early retirement prior to her dismissal), and at which her children had been educated. That understandably increased the sting she felt at the way she perceived her treatment. 326.4. The Claimant struggled for a time to go out in the local area after her dismissal; the discriminatory conduct therefore had an effect on her personal as well as her professional life.[327]I take care only to compensate the Claimant for injury to feelings caused by her discriminatory dismissal, not by the pre-dismissal conduct which I have found was not in breach of the Equality Act 2010.[328]Weighing all of that up, I consider that this is a case which falls in the middle Vento band, and towards the bottom of that band. In my judgment, the correct sum to compensate the Claimant for the injury to feelings causes is £15,000. ACAS Code[329]The Respondents’ case is that compensation should be downlifted because the Claimant unreasonably failed to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.[330]Mr Hitchens’ submission was that the failure on the Claimant’s part was in withdrawing her appeal, and that that was a failure in respect of the grievance element of the procedure, rather than the disciplinary element. It must be right that the disciplinary element of the code was not engaged, given that the Claimant was not dismissed for any culpable reason.[331]No authority was cited to me for the proposition that an appeal against a (non-disciplinary) decision was a grievance within the meaning of the ACAS Code. I can see that there may be circumstances where an Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 60 of 69 appeal could engage the grievance provisions of the Code. I do not consider that that was the case here, though because: 331.1. The Claimant initially indicated an appeal then indicated that she no longer wished to pursue it. 331.2. I can see nothing to suggest that, had she not indicated an intention to appeal at all, she could have been criticised for failing to raise a “grievance” about her dismissal – that is at odds with both the letter and the spirit of the Code. 331.3. It cannot be right then that the Claimant could be in a worse position having initially indicated that she wished to appeal, then subsequently withdrawn that appeal, than if she had simply not indicated an intention to appeal. 331.4. Furthermore, if the Claimant had gone through with the appeal, and been unhappy with the outcome, the natural end-point of Mr Hitchens’ submission would be that the Respondents would be liable to an ACAS code uplift if they did not give her a chance to further appeal that decision (as the provisions on grievances within the ACAS Code would require them to); notwithstanding the fact that there was no second right of appeal in the First Respondent’s sickness absence policy. Again, I cannot see that that can be right bearing in mind the way the Code is drafted. That appears to me to stretch both the Code and section 207A far beyond their natural limits.[332]I would in any event have decided that the Claimant did not act unreasonably by withdrawing her appeal, in circumstances where: 332.1. She was still unwell; 332.2. She was concerned that engaging with the Stage 3 Absence Hearing had been a stressful experience which had worsened her condition; 332.3. She believed, based on discussions with her Trade Union, that her appeal stood little chance of success; and 332.4. She was not sure that she wanted to return to work at the School.[333]So I make no adjustment for unreasonably failure to comply with the ACAS Code Retirement age[334]The Claimant’s evidence was that she would have retired at some point between the age of 60 and 65 (although she also referred to her pension age, which Mr O’Keeffe submitted would have been 67 in the section of the Teachers’ Pension Scheme she was in). She referred to having ongoing financial responsibilities for her children; she also referred to the fact that she had put her career on hold to a degree to have children, Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 61 of 69 and consequently that there was more she wanted to do with her career so she would have wished to keep on working.[335]Mr Hitchens suggested that the Claimant would have retired at the earlier age of the range she had suggested because of the effects of her disabilities. With respect to Mr Hitchens, I am not persuaded that that submission is made out, because: 335.1. There was no medical evidence before me which supported that. 335.2. The Claimant’s long covid was gradually improving throughout, and there was nothing to suggest it would still be a significant issue for her by the time she reached her mid sixties 335.3. The Claimant’s evidence throughout was that her Hashimoto’s was generally well managed with medication, albeit that it would flare up on occasion.[336]Doing the best I can with the evidence before me, and bearing in mind the obvious pride and satisfaction that the Claimant took in her career as a teacher, I find on balance that had she had she not been dismissed, the Claimant would have retired from her teaching role at 65. Pension loss, interest and grossing up[337]After delivering my reasons on the above, the parties took some time to consider their respective positions. The parties then put forward an agreed position that: 337.1. They would take some time to consider whether the Claimant’s pension loss could be agreed on a simplified loss approach; 337.2. If it could not, the parties would jointly instruct a pensions expert (with the cost being borne by the Claimant); and 337.3. Following receipt of the pensions expert’s report if the parties could not then agree the pension loss then a further figure would be listed.[338]I accepted the parties’ jointly agreed position. On that basis, I then dealt with interest and grossing up on the awards that I had made, as follows:[339]The date of discrimination was the date on which the Claimant was notified of her dismissal – 25 November 2022. To the calculation date, that gave 763 days.[340]In respect of the injury to feelings award, £15,000 at 8% = £3.29 per day, which for 763 days gave a total of £2,510.27.[341]In respect of the compensatory award, £7,984.53 (lost earnings) at 8% = £1.75 per day, which for 382 days gave a total of £668.50. Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 62 of 69[342]That gave the following total figures: 342.1. Basic award - £13,181.50 342.2. Compensatory award (loss of statutory rights) - £350 342.3. Injury to feelings - £15,000 342.4. Interest on injury to feelings - £2,510.27 342.5. Compensation for discrimination (lost earnings) - £7,984.53 342.6. Interest on lost earnings - £668.50 342.7. Subtotal – £39,694.80[343]The first £30,000 of the award can be paid without deduction. The remainder needed to be grossed up. £9,694.80 grossed up at 20% = £12,118.50.[344]That gave an overall total of £42,118.50. Employment Judge Leith ___15 January 2025_____________ APPENDIX – LIST OF ISSUES The Issues Jurisdiction

The Issues

[1]the 3-month time limit prescribed by section 123(1)(a) of the Equality Act 2010? Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 63 of 69[2]If so, do the claims or some of them taken together constitute conduct extending over a period, the end of which was in time?[3]Alternatively if so, is it just and equitable to extend time pursuant to section 123(1)(b) of the Equality Act 2010? Disability Discrimination[4]Was the Claimant at the material times a disabled person within the meaning of section 6 of the Equality Act 2010? Section 15 Discrimination Arising in Consequence of Disability[5]Did the First Respondent and/or the Second Respondent know or could reasonably have been expected to know that the Claimant was a disabled person within the meaning of section 6 of the Equality Act 2010 at the material times?[6]If so, did the First Respondent and/or the Second Respondent treat the Claimant unfavourably by reason of the following acts: a) Not -19 absence as an infectious disease at work? (Paragraph 23a) of the Particulars of Claim) b) -19 related absences from work? (Paragraph 23b) of the Particulars of Claim) c) Process? (Paragraph 23c) of the Particulars of Claim) d) Continuing with th (Paragraph 23d) of the Particulars of Claim) e) Making a decision to dismiss the Claimant from her job at the First Respondent? (Paragraph 23e) of the Particulars of Claim)[7]If so, was the reason for the said unfavourable treatment because of something arising in consequence of disability? Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 64 of 69[8]If so, was the said unfavourable treatment a proportionate means of achieving a legitimate aim? Section 20 Reasonable Adjustments[9]Did the First Respondent and/or the Second Respondent apply the following a) That its Teachers working at the First Respondent should be fit and healthy? (Paragraph 22a) of the Particulars of Claim) b) That its teachers working at the First Respondent should attend work regularly? (Paragraph 22b) of the Particulars of Claim) c) That its teachers working at the First Respondent should teach a full workload? (Paragraph 22c) of the Particulars of Claim) d) That its teachers working at the First Respondent should have a tutor group? (Paragraph 22d) of the Particulars of Claim)[10]If so, did the said PCPs place the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled?[11]If so, and the duty to make reasonable adjustments arose, did the First Respondent and/or the Second Respondent fail to take such steps as were reasonable to avoid the said substantial disadvantage to the Claimant?[12]Did the First Respondent and/or the Second Respondent know or could reasonably have been expected to know that Claimant was a disabled person within the meaning of section 6 of the Equality Act 2010 at the material times and was likely to be placed at the said substantial disadvantage?[13]Did the First Respondent and/or the Second Respondent fail to make the following reasonable adjustments for the Claimant: a) Allowing the Claimant to record her Covid-19 absences from work as an infectious disease? (Paragraph 24a) of the Particulars of Claim) b) -19 related absences from work? Paragraph 24b) of the Particulars of Claim) Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 65 of 69 c) teach a full workload and not have a tutor group? Paragraph 24c) of the Particulars of Claim) d) Process? Paragraph 24d) of the Particulars of Claim) e) Paragraph 24e) of the Particulars of Claim) f) Allowing the Claimant more time to recover from her Post-Concussion Syndrome. Paragraph 24f) of the Particulars of Claim) g) Not making a decision to dismiss the Claimant from her job at the First Respondent and allowing the Claimant to continue in her job at the First Respondent. Paragraph 24g) of the Particulars of Claim)

Remedy

[14]What financial losses has the discrimination caused the Claimant?[15]Has the Claimant taken reasonable steps to mitigate her financial loss?[16]If not, for what loss should the Claimant be compensated?[17]What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?[18]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?[19]Did the Claimant unreasonably fail to comply with it?[20]If so, is it just and equitable to decrease any award payable to the Claimant? By what proportion, up to a maximum of 25%?[22]Should interest be awarded? How much? SECOND EMPLOYMENT TRIBUNAL CLAIM Case Number: 2301903/2023 2303800/2023 © Crown Copyright 2023 66 of 69 Unfair Dismissal[23]potentially fair reason? The First Respondent and/or Second Respondent rely on the potentially fair reason of capability.[24]Did the Respondents act reasonably in the circumstances, including its size and administrative resources, in treating the alleged incapability as a sufficient reason for th a) Did the First Respondent and/or Second Respondent genuinely believe the Claimant was no longer capable of performing her duties? b) Did the First Respondent and/or Second Respondent adequately consult with the Claimant? c) Did the First Respondent and/or Second Respondent carry out a reasonable investigation, including finding out about the up-to-date medical position? d) Could the First Respondent and/or Second Respondent reasonably have been expected to wait longer before dismissing the Claimant?[25]Was dismissal a sanction within the range of reasonable responses open to the First Respondent and/or Second Respondent?[26]Did the First Respondent and/or Second Respondent follow a fair procedure? Remedy 26. What basic award should be made to the Claimant?[27]Are there any grounds on which the basic award should be reduced, e.g. contributory fault? If so, by how much?[28]What compensatory award should be made to the Claimant, taking into account what is just and equitable in all the circumstances having regard to the loss sustained by the Claimant in consequence of the dismissal in so far as that loss is attributable to action taken by the First Respondent and/or Second Respondent? In particular: Case No: 2301903/2023 & 2303800/2023 10.8 Reasons – rule 62(3) March 2017 a) What past losses has the Claimant sustained as a result of her dismissal? b) What future losses is the Claimant likely to sustain as a result of her dismissal? c) What amount should be awarded for loss of statutory rights? d) To what extent, if any, did the Claimant contribute to her dismissal? e) If the dismissal is found to be procedurally unfair, what is the likelihood that the Claimant would have been dismissed fairly in any event, and when would such fair dismissal have taken place? f) If the dismissal is found to be substantively unfair, would the Claimant have been fairly dismissed by reason of ill health within a short period thereafter? g) Has the Claimant made reasonable attempts to mitigate her losses? h) Did the Claimant unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures? If so, would it be just and equitable to decrease the award of compensation? If so, by what percentage, up to a maximum of 25%? Disability Discrimination Preliminary Jurisdiction

Preliminary

[29]Were any of the the 3-month time limit prescribed by section 123(1)(a) of the Equality Act 2010?[30]If so, do the claims or some of them taken together constitute conduct extending over a period, the end of which was in time?[31]Alternatively if so, is it just and equitable to extend time pursuant to section 123(1)(b) of the Equality Act 2010?[32]Was the Claimant at the material times a disabled person within the meaning of section 6 of the Equality Act 2010? Case No: 2301903/2023 & 2303800/2023 10.8 Reasons – rule 62(3) March 2017 Section 15 - Discrimination Arising in Consequence of Disability[33]Did the First Respondent and/or the Second Respondent know or could reasonably have been expected to know that the Claimant was a disabled person within the meaning of section 6 of the Equality Act 2010 at the material times?[34]If so, did the First Respondent and/or the Second Respondent treat the Claimant unfavourably by reason of the following acts: a) Making a decision to dismiss the Claimant from her job at the First Respondent? (Paragraph 25a) of the Particulars of Claim) b) (Paragraph 25b) of the Particulars of Claim) Section 20 Reasonable Adjustments[35]Did the First Respondent and/or the Second Respondent apply the following e) That its Teachers working at the First Respondent should be fit and healthy? (Paragraph 24a) of the Particulars of Claim) f) That its teachers working at the First Respondent should attend work regularly? (Paragraph 24b) of the Particulars of Claim) g) That its teachers working at the First Respondent should teach a full workload? (Paragraph 24c) of the Particulars of Claim) h) That its teachers working at the First Respondent should have a tutor group? (Paragraph 24d) of the Particulars of Claim)[36]If so, did the said PCPs place the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled?[37]If so, did the said PCPs place the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled?[38]If so, and the duty to make reasonable adjustments arose, did the First Respondent and/or the Second Respondent fail to take such steps as were reasonable to avoid the said substantial disadvantage to the Claimant? Case No: 2301903/2023 & 2303800/2023 10.8 Reasons – rule 62(3) March 2017[39]Did the First Respondent and/or the Second Respondent know or could reasonably have been expected to know that Claimant was a disabled person within the meaning of section 6 of the Equality Act 2010 at the material times and was likely to be placed at the said substantial disadvantage?[40]Did the First Respondent and/or the Second Respondent fail to make the following reasonable adjustments for the Claimant: a) -19 / Long Covid-related absences from work? (Paragraph 26a) of the Particulars of Claim) b) Allowing the Claimant more time to recover from her Post-Concussion Syndrome which was not a permanent condition? (Paragraph 26b) of the Particulars of Claim) c) Not making a decision to dismiss the Claimant from her job working at the First Respondent and allowing the Claimant to continue in her job working at the First Respondent? (Paragraph 26c) of the Particulars of Claim) d) Allowing the Claimant to return to work in January 2023 once the Claimant was able to work again? (Paragraph 26d) of the Particulars of Claim) e) from 30 April 2023? (Paragraph 26e) of the Particulars of Claim) f) (Paragraph 26f) of the Particulars of Claim) g) Equality Act 2010? (Paragraph 27) of the Particulars of Claim) Remedy for Disability Discrimination[41]What financial losses has the discrimination caused the Claimant?[42]Has the Claimant taken reasonable steps to mitigate her financial loss?[43]If not, for what loss should the Claimant be compensated?[44]What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? Case No: 2301903/2023 & 2303800/2023 10.8 Reasons – rule 62(3) March 2017[45]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did the Claimant unreasonably fail to comply with it? If so, is it just and equitable to decrease any award payable to the Claimant? If so, by what proportion, up to a maximum of 25%?[46]Should interest be awarded? If so, how much? Case No: 2301903/2023 & 2303800/2023 EMPLOYMENT TRIBUNALS Claimant: Ms J White Respondent: The Governing Body of Dorothy Stringer School(1) Brighton and Hove City Council(2) Before: Employment Judge Leith